Assessing Judicial Reforms in Developing Countries: Trust in Law and Criminal Procedure Reform in Chile [1st ed.] 978-3-030-14247-6;978-3-030-14249-0

Table of contents :
Front Matter ....Pages i-xxii
Introduction (Juan Carlos Oyanedel)....Pages 1-6
An Overview of Judicial Reform in Latin America (Juan Carlos Oyanedel)....Pages 7-35
The Analysis of Trust and Criminal Justice: Between Legitimacy and Order (Juan Carlos Oyanedel)....Pages 37-54
The Analysis of Attitudinal Information in Crime Surveys (Juan Carlos Oyanedel)....Pages 55-76
The Assessment of a Judicial Reform Through Public Opinion: Theoretical and Methodological Issues (Juan Carlos Oyanedel)....Pages 77-94
An Overview of the Effects of the Chilean Criminal Procedure Reform (Juan Carlos Oyanedel)....Pages 95-109
Trust in the Criminal Justice System and Judicial Reform: A Pseudo-panel Analysis (Juan Carlos Oyanedel)....Pages 111-117
The Effects of Judicial Reform on Confidence and Trust in the Courts (Juan Carlos Oyanedel)....Pages 119-129
The Effects of Judicial Reform on Confidence in Policing (Juan Carlos Oyanedel)....Pages 131-142
Confidence in Policing and Crime Reporting in Chile (Juan Carlos Oyanedel)....Pages 143-155
Conclusions (Juan Carlos Oyanedel)....Pages 157-161
Back Matter ....Pages 163-164

Citation preview

Juan Carlos Oyanedel

Assessing Judicial Reforms in Developing Countries Trust in Law and Criminal Procedure Reform in Chile

Assessing Judicial Reforms in Developing Countries

Juan Carlos Oyanedel

Assessing Judicial Reforms in Developing Countries Trust in Law and Criminal Procedure Reform in Chile

123

Juan Carlos Oyanedel Universidad Andrés Bello Santiago, Chile

ISBN 978-3-030-14247-6 ISBN 978-3-030-14249-0 https://doi.org/10.1007/978-3-030-14249-0

(eBook)

Library of Congress Control Number: 2019933191 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To Hugo and Pedro, most missed friends. To Edmundo Fuenzalida, pioneer of the sociology of law in Latin America.

Foreword

This book is an achievement on several fronts. Firstly, it represents an impressive fusion of theoretical subtlety and sophisticated quantitative research methods. This happens far too rarely in the policy research world that I inhabit. Secondly, the conceptual lens through which it examines the reforms to the Chilean criminal justice system is one that provides—to my mind—exactly the right focus that is needed when assessing the performance of any justice system. And thirdly, it generates some real insights into the impact of one important governmental reform process. In this foreword, I shall discuss briefly these three themes. There is no good reason why quantitative research methods cannot be harnessed to theoretical development, even if in the UK—which is the only country that I can speak about with any authority—the dominant stance of theoretically engaged criminologists has been one of hostility to quantitative research, statistics and statistical analysis. The clearest example of this is to be found in the work of the late Jock Young, whose last book caricatured quantitative criminologists as ‘datasaurs’, creatures akin to dinosaurs, with small brains and large bellies, with an uncontrolled appetite for government grants.1 There is a grain of truth in this, in that the UK government funders have a quantitative bias and do not especially value independence of mind in their analysts, and some quantitative criminologists prefer to use their methods simply to describe the world, rather than to develop and test the theory. However, this book amply demonstrates that well-designed and well-executed surveys, when analysed to test properly elaborated hypotheses, can make a major contribution to our understanding of the impact of policy. In an increasingly complex social world, quantitative methods—and large-scale social surveys in particular—allow us to detect a pattern in populations that would escape the notice of the most diligent ethnographer. We should always bear in mind Emmanuel Kant’s dictum that ‘Theory without empirics is empty. Empirics without theory is blind’.

1

Young, J. (2011). The Criminological Imagination. Cambridge: Polity Press.

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Foreword

The conceptual framework which is deployed in this book is one that deserves a warm welcome. Classical criminology and common sense thinking about crime tend to appeal to a simple model of crime control in which people are rational-economic calculators in deciding whether to break the law and where deterrent threat is the main weapon in the armoury of criminal justice. If a country introduced major reforms to its justice system, it would strike most people as reasonable to ask if the reforms had reduced crime. However, behind this simple and sensible question are some questionable assumptions about people’s responsiveness to deterrent or repressive strategies and their indifference to the fairness and legitimacy of the justice system. The biggest risks to rational criminal justice policy occur when politicians and those who run the justice system operate with a simplistic model of social control. More subtle models of crime control recognise that formal criminal justice is only one of many systems of social control, most of which have a significant normative dimension. People choose not to offend out of moral or ethical considerations, and not—generally—through a calculation of self-interest. Criminology has given insufficient attention to questions about why people comply with the law and too much attention to questions about why people break the law. The imbalance is important, because questions about reasons for law-breaking tend—not inevitably, but because of the political climate in which policy is developed—to yield answers framed within the boundaries of the simple crime control model described above, finding solutions to crime control that are designed to secure instrumental compliance. A more textured appreciation of the way in which justice systems function has to be built upon an understanding of normative compliance and about the interplay between formal and informal systems of social control. Normative compliance with the law occurs when people feel a moral or ethical obligation or commitment to do so. Theories of normative compliance posit a range of mechanisms by which people acquire—or lose—norms of acceptable behaviour. It is clear that formal systems of justice are not central to these processes, but that justice systems with the right qualities can play an important supporting role. What are these qualities? Research in the procedural justice tradition is making significant progress in showing how the legitimacy of justice systems—in the eyes of the ‘policed’, but also in the eyes of those wielding authority—is a critical variable. Systems that are legitimate secure public compliance with the law and public cooperation with the police and other legal authorities. And how is legitimacy built and secured? The surest path is by building public trust—trust in the fairness of the system and trust in its competence. In many, but not all, countries, the surest route to legitimacy is by treating people fairly and respectfully, listening to what they have to say, and explaining the decisions of legal authorities. Survey research has made big strides in the last few years in establishing the ‘grammar’ and ‘syntax’ of legitimacy. Finally, this book has some important substantive findings about the reforms made to the Chilean justice system. The reforms had a varying impact across different socio-demographic groups. Those who responded most positively were

Foreword

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clearly the least likely to be engaged in crime. In any justice reform strategy, it strikes me first that legitimacy in the eyes of the public has to be a central criterion in assessing success, and secondly, it is critically important to ask, ‘In the eyes of which publics?’—because citizens are never an undifferentiated mass. And the answer that I would offer is that the most important target audiences for legitimating strategies are those at risk of offending. Young people, young men and those young men at the margins of society are the people whose trust the police and the courts most need to win. London, UK August 2014

Mike Hough Professor of Criminal Policy Birkbeck, University of London

Preface

Trust in the police and the courts has been a topic which has regained increasing attention in the last twenty years. Much has been learned regarding the psychological processes involved in trust and authority dynamics, and we owe a lot of this to authors such as T. R. Tyler, Jon Jackson and Mike Hough. Research in procedural justice has opened a clear way to translate research findings into policy and practices, helping institutions engage with citizens in a fairer and more legitimate way. Nonetheless, during my years researching in the field, I have reached the conclusion that a more sociological approach was needed to fully understand the role of trust in the police and the courts in the framework of different institutional settings. While legitimacy is a relatively new concept in the psychological area, it represents a core concept in the sociological literature, together with the concepts of norm and inequality. The fact that crime—and the administration of justice—occurs in different institutional forms (from communal norms to international criminal courts) has serious implications for the analysis of both crime and the way society deals with it. Until recently, most research in this field has come from developed countries, with solid institutions, and usually following the model of electoral democracies. A lot less frequent to be found is empirical research carried out in developing and post-authoritarian countries. Research in this area has shown one main conclusion: although psychological processes can be assessed across countries, institutional frameworks do affect the way people understand these processes. This book tries to contribute to this literature by presenting the case of the criminal procedure reform in Chile, which was part of the process of democratisation initiatives undertook by the country after the fall of Pinochet’s dictatorship in the late eighties. The reform was implemented between 2000 and 2005, but the institutional arrangements leading to it can be dated to the early nineties. On the other hand, its consequences are still ongoing. The reform was regarded as a successful one and is still promoted as a model for the implementation of policies across Latin America.

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Preface

I had the unique opportunity to be part of such a process from different perspectives, I was part one of the international agencies supporting this process: the German Technical Cooperation Agency (GTZ), who supported the process through its judicial reform project. The project dealt mainly the technical aspects of legal reform and helped with the training of the operators of the new institutions. In this role, I was part of the team creating instruments to monitor and assess the possible effects of the reform. The project played a strategic role in the implementation, and the fact that it was located physically inside the Ministry of Justice is a proof of that. I was also part of two other institutions involved: The National Institute of Statistics and the Ministry of Interior. At the National Institute, I was involved in the development of the Chilean Crime Survey, whose data constitutes the main data source of this book, as well as the backbone of the country’s criminal policy. This allowed me to understand the logic of official statistics production, as well as the complexities of data production. At the Ministry of Interior, I learnt the tough work of policymaking and the need for political consensus for the successful implementation of policy initiatives. Over those years, I realised that a good communication not only of results, but of the assumptions used to produce data, was a key component to reach political agreements. This book is a product of these experiences and tries to fulfil a void between academia and practice in the area of criminal policy. Even when we could not agree on how things should be, we can start agreeing about how the world is. And for those purposes what lies behind of data is a key component. Santiago, Chile

Juan Carlos Oyanedel

Acknowledgements

This book could not have been completed without the support of several people. First, I would like to acknowledge the mentorship and support of my Ph.D. Supervisor, Prof. Mike Hough. He taught me the value of practice for meaningful research and the value of research to change the life of people through practice. Second, I would like to acknowledge the support of my colleagues at Universidad Andrés Bello. Several ideas of this work were discussed with colleagues at the Institute for Criminal Policy Research at Birkbeck, University of London; at the Max Planck Institute for Foreign and International Criminal Law in Freiburg; and at the Centre for Experimental Social Sciences at Nuffield College, University of Oxford. I thank them for their insights and ideas that helped me to increase the quality of this work. Third, my most sincere thanks go to Katherine Chabalko and Judith Newlin, whose editorial support was critical for finishing this work. I also thank Ian Hearnden and Bárbara Rivera, who helped to increase the readability of this work. This research was carried out with the support of the Chilean Science and Technology Council (Grants F3140025, F1161624, F1181533 and CIE 160009). I would also like to thank the Chilean Ministry of the Interior for authorising me to use the data from the Chilean Crime Survey series.

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Contents

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Introduction . . . . . . . . . . . . . . . 1.1 The Problem . . . . . . . . . . . 1.1.1 Democratisation . . 1.1.2 Procedural Justice . 1.1.3 Crime Surveys . . . 1.2 Fields of Application . . . . . 1.3 Book Structure . . . . . . . . . References . . . . . . . . . . . . . . . . .

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An Overview of Judicial Reform in Latin America . . . . . . 2.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The New Debate on Law and Development . . . . . . . . 2.2.1 The Case of Chile . . . . . . . . . . . . . . . . . . . . 2.3 Two Steps Forward, One Step Back: A Brief Account of Chilean Criminal Policy Reforms . . . . . . . . . . . . . 2.3.1 Criminal Policy Changes in Chile . . . . . . . . . 2.3.2 Changes to the Chilean Judiciary . . . . . . . . . 2.4 The CPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Previous Criminal Procedure . . . . . . . . . . . . . 2.4.2 The New Procedure . . . . . . . . . . . . . . . . . . . 2.4.3 The CPR’s Model of Implementation . . . . . . 2.5 The CPR as a Public Policy . . . . . . . . . . . . . . . . . . . 2.6 Stakeholders in the Implementation of the CPR . . . . . 2.7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The Analysis of Trust and Criminal Justice: Between Legitimacy and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 An Informational Bases Approach to Law and Order . . . . . . . .

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3.2.1 The Idea of Informational Basis: Sen . . . . . . A Rational Choice Approach to Crime Control . . . . . Law and Order and Procedural Justice . . . . . . . . . . . 3.4.1 The Procedural Justice Approach . . . . . . . . . 3.5 Procedural Justice and Theories of Legitimacy . . . . . 3.6 Inequality and Legitimacy: Sociological Intakes into Procedural Justice . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 3.4

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The Analysis of Attitudinal Information in Crime Surveys . . . . . 4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Crime Surveys as an Intellectual Project . . . . . . . . . . . . . . . . 4.2.1 Crime Surveys as a Criminological Project . . . . . . . 4.2.2 The Ambiguous Academic Standing on Crime Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Crime Control and Victimisation Surveys . . . . . . . . . . . . . . . 4.4 Subjective Information and Crime Surveys . . . . . . . . . . . . . . 4.4.1 The Invention of Fear of Crime . . . . . . . . . . . . . . . . 4.5 The Critique of Critical Criminology and the Politics of Law and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Subjective Information as a Managerial Tool: The Search for Public Opinion . . . . . . . . . . . . . . . . . . . . . . 4.6.1 Analysis of the Police—Are We Doing Well? . . . . . 4.6.2 The Analysis of Attitudes to Punishment: Are We Giving the People What They Want? . . . . . 4.7 Conclusions: The Limits of the Homo Economicus in Criminal Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Assessment of a Judicial Reform Through Public Opinion: Theoretical and Methodological Issues . . . . . . . . . . . . . . . . . . . . 5.1 Trust in Law and Confidence in Justice . . . . . . . . . . . . . . . . 5.2 The Meaning of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Between Trust and Confidence . . . . . . . . . . . . . . . . . . . . . . 5.4 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Temporal Dimension of Trust . . . . . . . . . . . . . . . . . . . . 5.6 Opinions, Attitudes and Behaviours: What Is Trust? . . . . . . . 5.7 Behaviours, Opinions and Attitudes in Criminal Justice . . . . 5.8 Why Analyse Trust in Law for Judicial Reform? . . . . . . . . . 5.9 How to Assess a Judicial Reform? . . . . . . . . . . . . . . . . . . . . 5.10 Data Sources: How to Assess the Effects of Chilean Criminal Procedure Reform? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5.10.1 The Chilean Crime Survey . . . . . . . . . . . . . . 5.10.2 The CPR Model of Implementation . . . . . . . . 5.10.3 Analysis of the CPR’s Effects on Confidence in Justice Through the CCS . . . . . . . . . . . . . 5.11 Research Question . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12 Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13 Hypotheses Under Test . . . . . . . . . . . . . . . . . . . . . . . 5.14 Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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An Overview of the Effects of the Chilean Criminal Procedure Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Victimisation and Reporting Practices . . . . . . . . . . . . . . . . . 6.3 Fear of Crime and Protective Measures . . . . . . . . . . . . . . . . 6.4 Carrying Firearms and the State’s Monopoly on the Legitimate Physical Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Public Opinion and Criminal Justice: People Talking About Criminal Justice Institutions . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trust in the Criminal Justice System and Judicial Reform: A Pseudo-panel Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 The Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Is Trust in the CJS a Stable Attitude? . . . . . . . . . . 7.3.2 The Effect of Trust in the CJS on Perceptions of Victimisation Over Time . . . . . . . . . . . . . . . . . 7.3.3 The Effect of CPR on Trust in the Criminal Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effects of Judicial Reform on Confidence and Trust in the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Evaluating the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Creation of Comparison Groups . . . . . . . . . . . . . 8.2.2 Adaptation of Toharia’s Model of Public Opinion Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 Descriptive Analysis: General Public . . . . . . . . . . 8.2.4 Descriptive Analysis: Users . . . . . . . . . . . . . . . . .

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8.3 Estimating Loyalty: General Public . . . . . . . . . . . . . . . . . . . . . 126 8.4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 . . . . . . . . . . . . . .

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10 Confidence in Policing and Crime Reporting in Chile . . . . . . . . . 10.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Measuring Attitudes Towards Police . . . . . . . . . . . . . . . . . . 10.2.1 Trust in Carabineros . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Confidence in the Police . . . . . . . . . . . . . . . . . . . . . 10.2.3 Carabineros: Law Enforcement . . . . . . . . . . . . . . . . 10.2.4 Carabineros: Community Engagement . . . . . . . . . . . 10.2.5 Policia de Investigaciones: Law Enforcement . . . . . . 10.3 Are Attitudes Towards the Police Affected by the CPR? . . . . 10.3.1 Trust in Carabineros . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Confidence in the Police: Carabineros (Law Enforcement) . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.3 Confidence in the Police: Carabineros (Community Engagement) . . . . . . . . . . . . . . . . . . . 10.3.4 Confidence in the Police: Policia de Investigaciones (Law Enforcement) . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 The Effect of Attitudes Towards the Police in Reporting Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5 Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The Effects of Judicial Reform on Confidence in Policing . 9.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 The Chilean Law Enforcement System . . . . . . . . . . . . 9.3 Changes in Policing as a Result of the Reform . . . . . . 9.4 Changes in Support for the Police . . . . . . . . . . . . . . . 9.5 Individual-Level Effects in Police Support . . . . . . . . . 9.5.1 Age Groups . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.2 Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.3 Socio-economic Strata . . . . . . . . . . . . . . . . . 9.5.4 Stages of the CPR . . . . . . . . . . . . . . . . . . . . 9.5.5 Victimisation . . . . . . . . . . . . . . . . . . . . . . . . 9.5.6 Educational Levels . . . . . . . . . . . . . . . . . . . . 9.6 Changes in Public Perception of the Police . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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11 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 11.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

List of Figures

Fig. 2.1 Fig. 2.2 Fig. 2.3 Fig. 2.4 Fig. 2.5 Fig. 6.1 Fig. 6.2 Fig. 7.1 Fig. 7.2 Fig. 7.3 Fig. 7.4 Fig. 7.5 Fig. 8.1 Fig. 9.1 Fig. 9.2 Fig. 9.3 Fig. 9.4

Percentage of people declaring “Much/Some Trust” in the judiciary of selected countries 1996–2009. . . . . . . . . . . . . . . . Percentage of people declaring “Much/Some Trust” in police forces of selected countries 1996–2009 . . . . . . . . . . . . . . . . . . Public concern about crime and theft and robbery reports 1989–1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prison population size in Chile 1980–2007 . . . . . . . . . . . . . . . Evolution of imprisonment and the alternative sentencing index 1996–2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victimisation and reporting trends CCS 2003–2006 . . . . . . . . Confidence in criminal justice actors. CCS 2003–2005 . . . . . . Effects of trust in law on victimisation: socio-economic classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effects of trust in law on victimisation: self-socio-economic classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Changes of trust in the CJS 2003–2005 . . . . . . . . . . . . . . . . . Effects of changes over time in trust in the criminal justice system on victimisation 2003–2006 . . . . . . . . . . . . . . . . . . . . Effects of period of CPR on changes in trust in the criminal justice system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Changes in Nagelkerke’s statistic by step . . . . . . . . . . . . . . . . Predicted probabilities of high support for Carabineros by age groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Policia de Investigaciones by age groups . . . . . . . . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Carabineros by gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Policia de Investigaciones by gender . . . . . . . . . . . . . . . . . . . . . . . . . . . .

..

13

..

13

.. ..

16 17

.. 29 .. 96 . . 105 . . 113 . . 114 . . 115 . . 116 . . 117 . . 128 . . 136 . . 136 . . 137 . . 137

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Fig. 9.5 Fig. 9.6 Fig. 9.7 Fig. 9.8 Fig. 9.9 Fig. 9.10 Fig. 9.11 Fig. 9.12 Fig. 10.1

List of Figures

Predicted probabilities of high support for Carabineros by socio-economic strata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Policia de Investigaciones by socio-economic strata . . . . . . . . . . . . . . . . Predicted probabilities of high support for Carabineros by stage of the Criminal Procedure Reform . . . . . . . . . . . . . . Predicted probabilities of high support for Policia de Investigaciones by stage of the Criminal Procedure Reform . . Predicted probabilities of high support for Carabineros by victimisation status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Policia de Investigaciones by victimisation status . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Carabineros by educational level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predicted probabilities of high support for Policia de Investigaciones by educational level . . . . . . . . . . . . . . . . . . . . Nagelkerke statistic increase by regression step: selected crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . 138 . . 138 . . 139 . . 139 . . 140 . . 140 . . 141 . . 142 . . 151

List of Tables

Table 2.1

Adoption of accusatorial criminal procedure codes in Latin America 1991–2006 . . . . . . . . . . . . . . . . . . . . . . . . . Table 2.2 Income distribution indicators 1990–2006 . . . . . . . . . . . . . . . Table 2.3 International rates of imprisonment in 2006 . . . . . . . . . . . . . Table 2.4 Comparison between old and new criminal procedure . . . . . Table 2.5 Phases of implementation of the CPR . . . . . . . . . . . . . . . . . . Table 5.1 Relevant publics and the system of justice: status and technical knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 5.2 Efficiency and social legitimacy dimensions . . . . . . . . . . . . . Table 5.3 A basic typology of social attitudes towards the justice system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 5.4 CCS: technical features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 5.5 Stages of implementation of the CPR . . . . . . . . . . . . . . . . . . Table 5.6 Scheme of CPR’s implementation . . . . . . . . . . . . . . . . . . . . . Table 6.1 Victimisation and reporting by social strata . . . . . . . . . . . . . . Table 6.2 Self-socio-economic classification by actual socio-economic classification (in %) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 6.3 Victimisation and reporting rates by self-socio-economic classification and actual socio-economic classification 2003 . Table 6.4 Victimisation and reporting by CPR stage. . . . . . . . . . . . . . . Table 6.5 People expecting to be victimised in the next 12 months . . . Table 6.6 How safe do you feel walking alone in your neighbourhood at night? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 6.7 People who declared that they had taken measures against crime in the last 12 months . . . . . . . . . . . . . . . . . . . . Table 6.8 Households with firearms 2003–2006 . . . . . . . . . . . . . . . . . . Table 6.9 Confidence in courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 6.10 Confidence in police forces . . . . . . . . . . . . . . . . . . . . . . . . . . Table 7.1 Variables used for SEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table 8.1 Relevant publics and the system of justice: status and technical knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

11 15 18 25 26

.. ..

86 87

. . . . .

. . . . .

87 89 89 90 96

..

97

. . . . .

.. 98 .. 99 . . 101 . . 102 . . . . .

. . . . .

103 105 106 107 112

. . 120 xxi

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List of Tables

Table 8.2 Table 8.3 Table 8.4 Table 8.5 Table 8.6 Table 8.7 Table 8.8 Table 8.9 Table 8.10 Table 8.11 Table 8.12 Table 8.13 Table 8.14 Table 8.15 Table 9.1 Table 9.2 Table 10.1 Table 10.2 Table 10.3 Table 10.4 Table Table Table Table

10.5 10.6 10.7 10.8

Comparison groups by months since CPR at CCS 2003 . . . . Efficiency and social legitimacy dimensions . . . . . . . . . . . . . A basic typology of social attitudes towards the justice system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Questions used in Toharia’s model . . . . . . . . . . . . . . . . . . . . Questions used for the analysis of confidence in justice and Trust in Law: CCS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trust and confidence in courts per year by comparison groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trust and confidence in courts per year by gender . . . . . . . . Trust and confidence in courts per year by age groups . . . . . Trust and confidence in courts per year by socio-economic status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trust and confidence in courts per year by comparison groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trust and confidence in courts per year by gender . . . . . . . . Trust and confidence in courts per year by age groups . . . . . Trust and confidence in courts per year by socio-economic status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regression coefficients predicting loyalty: final model . . . . . Population declaring that Carabineros/Policia de Investigaciones do a very good job at crime control . . . . . . . Model fit statistics (Nagelkerke) per model . . . . . . . . . . . . . . Public trust in Carabineros: scale . . . . . . . . . . . . . . . . . . . . . Confidence in Carabineros’ law enforcement capacities: scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Confidence in Carabineros’ community engagement capacities: scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public confidence in Policia de Investigaciones’ law enforcement capacities: scale . . . . . . . . . . . . . . . . . . . . . . . . . Crime report rates by social strata . . . . . . . . . . . . . . . . . . . . . Variables included by block . . . . . . . . . . . . . . . . . . . . . . . . . Crime reporting rates for different crimes 2003–2006 . . . . . . Regression coefficients: reporting practices by crime. . . . . . .

. . 121 . . 121 . . 122 . . 122 . . 122 . . 123 . . 124 . . 124 . . 125 . . 126 . . 126 . . 127 . . 127 . . 128 . . 134 . . 135 . . 144 . . 145 . . 146 . . . . .

. . . . .

146 149 150 151 152

Chapter 1

Introduction

1.1 The Problem In the context of a long-term democratisation process beginning after the fall of Pinochet’s dictatorship (1990), and a regional promotion of judicial reform in Latin America by international cooperation agencies, between 2000 and 2005, Chile implemented its Criminal Procedure Reform, through a phased model. The effects of this reform, which is the most important State reform in the judicial field in Chilean history, have received little evaluation. The main assessments of its effects have focused on administrative and procedural issues, mainly using administrative data. During this period, the CCS, a national cross-sectional victimisation survey, was implemented (2003). This survey included 20,000 households per sweep and is currently conducted annually. Presently, it is the main source of information for Chilean criminal policy. Fortunately, the model of implementation of the CPR, and the cross-sectional character of the CCS, allows the creation of a quasi-experimental study to assess the effects of the reform. In order to accomplish this goal, this investigation is based on the discussion of three main concepts: democratisation, procedural justice and crime surveys, which are subsequently discussed below.

1.1.1 Democratisation The return to democracy in Latin America has been entwined with the judicial reform process (Carothers 2001; Nagle 2000; Jarquín and Carrillo 1998; Prillaman 2000). This pre-eminence of judicial reform in the democratisation process, in terms of changes in both the judiciary structure and the criminal process, was a result both of international promotion of judicial reform by international agencies and of internal political struggles to maintain the stability of the political system. In fact, it could be

© Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_1

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said that judicial reform was a critical process stage for the success of the processes of democratisation in the region (Nagle 2000). In this context, the development of a civilian criminal policy, in opposition to the doctrine of national security implemented by military governments, was one of the main challenges for the new democracies. In the case of Chile, the development of a criminal policy has meant a civilianisation both of institutional dependency and of the main functions of the police, evolving from an “internal enemy” militarist conception to a rights-based approach to security issues. The civilianisation of police and criminal justice presents a distinctive character in the process of democratisation because it involved the adoption of the law and order doctrine, meaning higher rates of imprisonment and expanded perception of fear of crime. The expansion of fear of crime and imprisonment was not a part of the dictatorial regimes, who made use of military law and methods of crime control like those used with political adversaries, frequently violating human rights. The commonly accepted idea in advanced democracies is that the adoption of law and order policies has been a match to neoliberal economics and to electoral politics increasingly driven by populism, such as the models proposed by Garland (2002) and Young (1999). In contrast, the Latin American adoption of law and order seems to be entwined with the process of democratisation and not necessarily with consolidated democracies. In most Latin American countries, including Chile, neoliberal economic policies (liberalisation of markets, privatisation of public companies and increased participation of the private sector in key areas such as education and health services) were implemented during military governments, without any kind of political opposition or even debate (Harvey 2011; Leiva and Petras 1997). The result was the formation of highly unequal countries, with little space for social protest and certainly no open political discussion (Jocelyn-Holt 1998; Moulian 1997; Garretón 1995). In this context, the return to democracy involved the need for reforms, and the preferred area for reform in the region was neither the economy (because of the economic dependency of the region on foreign investment) nor the political system (because of the negotiated transitions that were part of several Latin American countries): it was the law, in particular criminal law and procedure. Consequently, there was a redefinition of the concept of criminal, from an enemy of the State (a politically oriented criminal) to an enemy of the citizens and their property (an economically orientated criminal). In Chile, the initial focus has been on the reform of criminal procedure. It has changed the complete model of penal prosecution, meaning a fairer process through the introduction of an adversarial process and qualified public defenders. Nonetheless, the implementation of the reform has highlighted some punitive elements in Chilean criminal policy, such as an increase in the incarceration rates, as a side effect of an expediter adjudication process without changing the criminal code.

1.1 The Problem

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1.1.2 Procedural Justice Academic debates on crime and justice have changed since the 1990s (Hough 2007a, b). The classic focus on crime reduction has given way to new concerns relating to trust in the criminal justice system. These concerns, which are part of the classic debates on domination and legitimacy mainly associated with the works of Max Weber (1978), have seen a later revival through the works of Tom Tyler (1989, 2006) and the procedural justice theorists (Jackson and Sunshine 2007; Hough et al. 2010). In this context, procedural justice theory focuses on how law really works. It highlights the dynamics of authority and legitimacy that support or inhibit given behaviours considered criminal. This body of research rooted in social psychology and showing great empirical support is based on the following question: Why do people obey the law? The hypothesis behind this theory is that citizens obey laws if they consider them fair. People, it argues, are more concerned with the fairness of the procedures of judicial decisions than of the perceived outcomes that may result. In this way, confidence in justice is related to both motivation to break the law and preparedness to cooperate with justice systems as victims or witnesses. A judicial reform which explicitly guarantees the development of a fairer judicial process puts these theoretical assumptions to test.

1.1.3 Crime Surveys The importance of confidence in justice leads us to the question of how to measure it. While procedural justice theorists have traditionally used surveys related to attitudes towards police and courts (both one-off and panel models) (Tyler and Huo 2002; Jackson and Sunshine 2007), others have utilised different research tools, such as crime surveys (Hough and Roberts 2007; Bradford et al. 2009; Bradford 2011). The use of crime surveys for the analysis of attitudinal information has meant a challenge to the original uses of these tools for the development of criminal policy. Although crime surveys have actually been in existence for 40 years, only recently have they been used to measure confidence in justice. Policy uses of crime surveys could certainly be improved with a clearer discussion about the role that the inclusion of attitudinal information has meant for the analysis of criminal justice policies. Nonetheless, the use of attitudinal information in crime surveys represents, due to their large scale and focus on crime issues, a good source of information for the analysis of the procedural justice hypothesis. Therefore, the use of the CCS for the analysis of trust in justice in the context of a judicial reform could represent a valuable contribution to the understanding both of judicial reforms and of the validity of the procedural justice theory in developing countries.

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1.2 Fields of Application Research on the intersection of judicial reform and procedural justice will contribute to four separate fields of knowledge. First, the results will contribute to a better understanding of the role of judicial reforms in democratisation processes of developing countries. This function has been extensively discussed, but rarely using empirical data. Therefore, the contribution to the topic would be done through the use of large-scale datasets. Second, it will contribute to mainstream criminological theory by assessing its validity in a developing country. Leading criminological theorists, such as Garland (2001) or Young (1999), analyse law and order policy as an exclusion mechanism in the framework of a liberal democracy. This thesis is developed based mainly on cases from the USA and UK, where electoral democracy has been a constant. In contrast, Latin American countries, due to their political history, offer an opportunity to analyse law and order policies as part of the democratisation process. While processes of social exclusion took place in the context of dictatorships, processes of democratisation maintained and legitimated those inequalities. In that sense, criminal policy does not simply have a generative role, but also a governance role. This difference in generating political structures could certainly serve to assess the validity of Garland’s and Young’s propositions, but also act as a starting point to generate theories about the role of criminal policy in post-authoritarian societies. The proposed research should inform further developments in this area, given its large amount of quantitative data and its coherence in the framework of national statistics. Third, this research will contribute to the debate on procedural justice. It will use a procedural justice approach to analyse an actual process of judicial reform in an authentic setting with a large-scale dataset. The Chilean process allows the testing of Tyler’s hypothesis that an increase of confidence in justice results from a fairer process (Tyler 2006). Finally, this research will create new ways for crime surveys to inform criminal policy. Although information produced by crime surveys is currently being used to assess both crime reduction strategies and public attitudes towards criminal justice, it has not yet been used for the analysis of judicial reforms. This research postulates that crime surveys can be a reliable tool to assess changes in the criminal justice system. However, in order to fulfil this function, surveys’ basic theoretical frameworks need updating. In these terms, the contributions of this research will be not only theoretical, but also in the applied field of development cooperation.

1.3 Book Structure Chapter 2 provides an overview of the processes of judicial reformin Latin Americaand the main discussions of law and development surrounding them. It focuses on the case of Chile by discussing the relationship between democratisation, public

1.3 Book Structure

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security and judicial reform, elements that constituted the judicial reforms’ framework. Chapter 3 evaluates the conceptual foundations of the analysis of trust in law from a political economy perspective. It shows how the concept of trust in law is incorporated into development theory. Chapter 4 discusses how victimisation surveys could represent a reliable basis to analyse justice systems and assesses the effect of judicial reforms through the analysis of trust in law. To do this, it deems that the origins of crime surveys were deeply entwined with the appearance of rational choice models applied to crime prevention, such as situational crime prevention strategies. I suggest that the measurement of crime-related attitudinal information, which supplements the original informational basis of crime victimisation measurement, raises important challenges to the basic rational choice-based model of analysis for crime control. Thus, it is necessary to reconsider its role as the core concept behind the research agenda of crime surveys. Chapter 5 examines the main issues that arise from the analysis of trust in law. For this reason, it presents a conceptual and methodological review of attitudes, opinions and behaviours and their relationship with the law. Also, it discusses the main challenges that need to be solved in order to analyse a judicial reform. Moreover, it presents the CCS’s main features, including the model of sequential implementation of the CPR that makes this analysis possible. Chapter 6 analyses the main effects of the Chilean CPR implementation on trust in law, and other indicators, such as crime rates. Chapter 7 details the results of the effects of the judicial reform between 2005 and 2007, using pseudo-panel data. Chapter 7 shows the estimation of the effects of the judicial reform on trust and confidence in the courts using structural equation modelling. Chapter 8 presents an analysis of the effects of judicial reform on trust in police institutions using a similar methodology. Chapter 9 provides an analysis of the effects of judicial reform on attitudes towards police institutions and their effects on willingness to report crime. Finally, Chap. 10 presents the main conclusions.

References Bradford, B., B. Stanko, and J. Jackson. 2009. Using Research to Inform Policy: The role of public attitude surveys in understanding public confidence and police contact”. Policing. A Journal of Policy and Practice 3 (2): 139–148. Bradford, B. 2011. Convergence, not divergence?: Trends and trajectories in public contact and confidence in the police. British Journal of Criminology 51 (1): 179–200. Carothers, T. 2001. The many agendas of rule-of-law reform in Latin America. In Rule of law in Latin America: The international promotion of judicial reform, eds. P. Domingo, and R. Sieder, 4–16. London: Institute of Latin American Studies. Garland, D. 2001. Punishment and control. Oxford: Oxford University Press.

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Garland, D. 2002. The culture of control: Crime and social order in contemporary society. Oxford: Oxford University Press. Garretón, M. 1995. Hacia una Nueva Era Política: Estudio sobre las democratizaciones. Santiago: FCE. Harvey, D. 2011. A brief history of neoliberalism. Oxford: Oxford University Press. Hough, M. 2007a. Policing London, 20 years on. In Transformations of policing, eds. A. Henry, and D. Smith, 191–212. Hampshire: Ashgate. Hough, M. 2007b. Research on victimisation and insecurity in Britain. National Report for CRIMPREV presented at the seminar on crime prevention and social integration policies. Barcelona, 19th and 20th April 2007. Hough, M., and J. Roberts. 2007. Public opinion, crime and criminal justice: The british crime survey and beyond. In Surveying crime in the 21st century, eds. M. Hough, and M. Maxfield. Cullompton: Willan. Hough, M., J. Jackson, B. Bradford, A. Myhill, and P. Quinton. 2010. Procedural justice, trust, and institutional legitimacy. Policing 4 (3): 203–210. Jarquín, E., and F. Carrillo. 1998. Justice delayed. Judicial reform in Latin America. Inter-American Development Bank-Johns Hopkins University Press, Washington, DC. Jackson, J., and J. Sunshine. 2007. Public Confidence in Policing: A neo-durkheimian perspective. British Journal of Criminology 47: 214–233. Jocelyn-Holt, A. 1998. El Chile perplejo: Del avanzar sin transar al transar sin parar. Santiago: Planeta. Leiva, F., and J. Petras. 1997. Democracy and poverty in chile: The limits of electoral politics. Boulder: Westview Press. Moulian, T. 1997. Chile actual: Anatomía de un mito. Santiago: Lom. Nagle, L.E. 2000. The cinderella of government: Judicial reform in Latin America. California Western International Law Journal 30 (Spring): 345–379. Prillaman, W. 2000. The judiciary and democratic decay in Latin America: Declining confidence in the rule of law. Westport, Connecticut: Praeger. Tyler, T.R. 1989. The psychology of procedural justice: A test of the group value model. Journal of Personality and Social Psychology 57: 850–863. Tyler, T.R. 2006. Why people obey the law. Princeton: Princeton University Press. Tyler, T.R., and Y. Huo. 2002. Trust in the law: Encouraging public cooperation with the police and courts. New York: Russell Sage Foundation. Weber, M. 1978. Economy and society, vol. I. Berkeley: University of California Press. Young, J. 1999. The exclusive society: Social exclusion, crime and difference in late modernity. London: Sage.

Chapter 2

An Overview of Judicial Reform in Latin America

2.1 General Since the late 1980s, several efforts have been made in the area of judicial reform as a part of the processes of democratisation and State modernisation carried out in Latin American countries. These were an attempt to guarantee political stability and to increase the legitimacy of the new democracies, which inherited several features of authoritarian rule (Garretón 1995). In this regional context, Chile has gone through several transformations in its criminal justice system since the return to democracy in 1990. The implementation of CPR between 2000 and 2005 has affected both criminal policy and judicial structure, resulting in a major change in the judicial practices of the lower-level courts. This chapter outlines the main changes in the Chilean criminal justice system, both in criminal policy and in the structure of the judiciary. It focuses on the transformations and implications of the implementation of the CPR.

2.2 The New Debate on Law and Development Several scholars have analysed the role of a fair judiciary in the development process (Prillaman 2000; Jensen 2003; Hewko 2002; Faúndez 2005). The earliest impetus for these analyses was the law and development movement, which started in the USA during the 1960s. As Stephenson (2000) pointed out, the movement aimed to apply reforms that might make the judiciary in developing countries more efficient, therefore contributing to the implementation of free-market economies. Ultimately, this initial impetus ended with its own advocates recognising its failure (Dezalay and Garth 2002). This unsuccessful attempt was caused by several weaknesses, both in academic and in political terms. First was the failure of constructing a strong body of theoretical work to support the reforms. Second, there is the inevitability of societies’ social © Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_2

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differentiation that led to capitalism, liberal democracy and rule of law, as proposed by modernisation theorists (Rostow 1960). The idea of a clear and univocal path to development was found in Latin America, and elsewhere, several institutional limitations which challenged its underpinning foundations. Similarly, Salas (2001) argues that a key ethnocentric idea that third world countries were going through stages to achieve the level of development represented by the USA led the promoters of law and development to focus more on promoting formal aspects of law than on analysing the informal regulation mechanisms that already worked in the countries in receipt of aid (2001: 19). While market-oriented economic policy could be implemented by decree under military regimes, the move to a liberal democracy operating under the rule of law required institutions that can command legitimacy (Weber 1978). As a consequence, initiatives now used institutional legitimacy as a core concept for the promotion of the rule of law. The new promoters of the judicial reform put the focus on the analysis of real social and legal practices, in order to incorporate them into the new institutional designs. Hernando de Soto’s (1989) “El otro sendero” (“The other path”) and Douglass North’s (1990) “Institutions, Institutional Change and Economic Performance” provided the theoretical basis for development cooperation programmes. Several initiatives were implemented throughout Latin America as countries returned to democratic government. The perspective proposed by neo-institutional economists, such as de Soto and North, that free-market economics are supported by strong institutional frameworks, gave to the rule of law and liberal democracy the role of consolidating the “economic miracle”. In this context, regaining legitimacy for the State and its institutions was the first issue that both critics and celebrants of neoliberalism had to deal with. The original focus of the “law and development” movement was the functioning of the legal system. However, its revival was built on the relationship between the general public and the judicial system. If the original “law and development” programme promoted a re-education of the elite through the adoption of the American model, the revised version was based on a systematic adoption of alternative dispute resolution mechanisms already present in the local cultures. Furthermore, previously the strategy for model acceptance was to persuade elites; the new focus was on the efficiency of the system, in terms of both administration and legitimacy. From an institutional perspective, one of the core concepts for the new rule of law movement is governance. As Salas notes, while there are subtle differences between [all] definitions of governance, all of them emphasise the participatory nature of the term and the necessity of public and private adherence to the rule of law. They all share a rejection of the rule of law as simply the adherence to established laws and refer to the term within the broader concept of democracy, differentiating between rule of law and rule by law (2001: 23).

In these terms, adherence to the rule means a search for the active consensus of the dominated and the need of State’s accountability to maintain this consensus. In this

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scenario, judicial reform was seen as part of a broader process seeking to “facilitate authentic stability through justice” (Kritz 1996, cited in Salas 2001: 23). In Latin America, one of the main concerns in the process of democratisation was the search for institutional stability and for both departing authoritarian rulers and new democratically elected authorities. Salas notes that critics of both models of democratisation through law believe that neoliberal economies are a necessary component. In this sense, Salas suggests that [s]ince a primary objective of financial institutions is stabilisation, democratisation and governance require a peaceful transition from authoritarian rule, which can only be achieved by compromise with [the] ruling classes and those responsible for the prior oppression. The need to avoid conflict requires that authoritarian figures be protected and even included as key decision makers in the transition (2001: 23–24).

The legacy of authoritarian rules in Latin America was, in a governance framework, an extension of aspects of the authoritarian regime in a democratic setting. In other words, despite the appearance of change, there was in fact no change at all. Garretón (2000) refers to these regimes as “tutelage or protected democracies”, because they preserve the influence and power bases for non-democratically elected groups as a way of maintaining their power through legal prerogatives.1 These legal and institutional spaces are called “authoritarian enclaves”. From the perspective of actors, as Dezalay and Garth (2002) propose, the return to democracy processes in Latin America involved several internal struggles for power. These processes were supported by international influences through external knowledge (obtained mainly through high-ranking officers studying overseas and through international cooperation missions), reproducing to some extent the different struggles and arguments of those in the developed countries.2 While risking exaggeration, it is possible to say that the human rights movement, backed by European academics, challenged the neoliberal Chicago economists, who were using Chile as their experimental laboratory. In other words, the former advocated fundamental rights at the expense of economic growth, and the latter privileged growth at any cost. The result of this struggle was clear: compromises were made in the new democratic systems, which preserved several features from authoritarian periods, justified by the idea of 1 Among

these authoritarian enclaves is the binominal electoral system. This allows the election of representatives by political coalitions rather than by the individual amount of votes. In this way, if one coalition obtains 60% of the votes, the candidate with the highest votes in that pact wins a chair, regardless of their individual number of votes. The second chair is the candidate with most votes of the second most voted coalition, except in cases where the winning pact doubles the second one. In a system with two main political alliances, this system allows stability, by scarifying representation. Another authoritarian enclave is known as “qualified quorum bills”. These are bills concerning constitutional and electoral issues that require the votes of two-thirds of both representatives’ chambers to be approved (Garretón 2000). 2 Dezalay and Garth (2002) define these as palace wars or struggles between lawyers and economists for the control of Latin American states. The processes developed in Latin America presume the gain of prestige and power in internal politics for the participants. As Chilean economic growth backed the Chicago model, these participants were more able to use this symbolic power to influence domestic policy. Human rights violations were used as the counterpart of this economic success.

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2 An Overview of Judicial Reform in Latin America

institutional stability. The main features preserved were the economic strategy and institutional arrangements. The second factor underpinning stability was political representation. In the highly presidential systems of Latin American countries, the preferred arena for the construction of authoritarian enclaves was the constitutional reform, which is why reform of the executive and legislative branches was one of the most discussed issues (Garretón 1995, 2000; Jensen 2003). Consequently, the first changes took place in the least developed institution: the judiciary, regarded by some authors as the “Cinderella of government” (Nagle 2000). In this context, the processes of return to democracy in Latin American countries gave rise to an extensive discussion about the role of the judiciary in the consolidation of the new democracies. The main themes of the argument s related to the effects that the development of a fair and efficient judiciary could have for economic development (Martínez 1998; Sherwood 1998; Liendo 1998; Hommes 1998; de Soto 1989), and while securing the stability of the new democratic governments (Correa 1998; Pásara 1998; Prillaman 2000; Ungar 2002). Those concerns existed in the context of international concern for the protection of human rights, which were systematically violated under the military regimes, including countries such as Chile, where the judiciary was not dismantled.3 Regarding this, Langer (2007) systematised the processes of judicial reform in the region (see Table 2.1 for a summary). Certainly, there were several agendas for judicial reform (Carothers 2001), which were motivated by the political and historical specificities of each country. The processes of reform were led by international cooperation agencies, which were looking to impose their own development agendas and not necessarily advance a countryspecific development path. This makes the analysis of these processes still more complex (Faúndez 2005; Pásara and Faúndez 2007). While some authors suggest a relationship between more efficient justice systems and development (Stone 2006; Liendo 1998; Salas 2001; Ungar 2002), others maintain that this relationship is supported more by common-sense arguments than by robust evidence. This is because assembling such causal evidence is complex (Carothers 2003; Hewko 2002), and actually, very limited effort has been put into evaluating judicial reform projects (Pásara and Faúndez 2007).

3 Several authors point out the complicity between the Chilean Supreme Court and Pinochet’s regime.

The former gave discretional space to undertake systematic human rights violations (Matus 1999). In fact, in June 2007, Judge Carlos Cerda was given the Gruber Foundation Justice Award for being the only judge pursuing human rights cases when Pinochet was still ruling. However, in those days, he was punished by the Supreme Court through a poor performance assessment, which led to a systematic impediment of his promotion to the Supreme Court.

2.2 The New Debate on Law and Development

11

Table 2.1 Adoption of accusatorial criminal procedure codes in Latin America 1991–2006 (Langer 2007) Country

Introduction of new accusatorial code within the last 15 years?

Year of adoption of new accusatorial code

Argentina

Yes in the federal system and also some provinces

Federal system (1991), province of Cordoba (1992), province of Buenos Aires (1997) and other provinces

Bolivia

Yes

1999

Brazil

No

Chile

Yes

2000

Colombia

Yes

2004

Costa Rica

Yes

1996

Cuba

No

Dominican republic

Yes

2002

Ecuador

Yes

2000

EI Salvador

Yes

1997

Guatemala

Yes

1992

Honduras

Yes

1999

Mexico

Not in the federal system, but in some states

Oaxaca (2006), Chihuahua (2006)

Nicaragua

Yes

2001

Panama

No

Paraguay

Yes

1998

Peru

Yes

2004

Uruguay

No

Venezuela

Yes

1998

2.2.1 The Case of Chile In Chile, the most important process of judicial reform4 has been related to criminal procedure. This process has altered both the structure of the judiciary (through the creation of the new institutions of Public Prosecutor and Public Defence Offices) and judicial procedures. Prosecutors perform investigations, and judges are responsible for sentencing. This change in criminal procedure was designed to give greater

4 Throughout the 17 years of democratic government in Chile, there have been changes in the career

path of judiciary members and in the establishment of a Judicial Academy. Moreover, there has been a renewal of the judges from the Supreme Court.

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2 An Overview of Judicial Reform in Latin America

protection to the rights of the accused, with the implementation of a quality defence5 that supports the accused throughout the criminal process.6 Several assessments have been made regarding this process, both against administrative and procedural criteria (Baytelman 2002; Baytelman and Duce 2003), and in relation to human rights (Universidad Diego Portales 2003, 2004, 2005, 2006; Ramm 2005). These evaluations show several improvements in the two fields. The idea that Chilean judicial reform has been successfully implemented is now part of the received wisdom among politicians and academics. Consequently, Chile has been held up as an example for the rest of the region.7 To the contrary, some authors have suggested that the implementation of the CPR has led to a more punitive system, citing the steady growth in the prison population after its implementation (Stippel 2006). However, there is little or no quantitative evidence about the impact of the changes, except the reducing administrative times (from detention to indictment and from indictment to sentencing). In fact, comparative analysis to the prior situation is limited and it relies on administrative data, opinion captured through qualitative work or limited omnibus opinion polls. In other words, the evaluations have a heavy bias towards the provision of an administrative view.8 One largely forgotten component of Chilean judicial reform is the assessment of its impact on citizenry. The situation prior to the reform was similar to the Brazilian one, with rates of trust in the courts higher than those of the immediate neighbours. Nonetheless, Fig. 2.1 shows that since the beginning of the reform in 2000 there was a decrease in trust, which only seemed to change after 2007, once the reform had been fully operational for two years. This situation demonstrates that unanswered questions remain in the Chilean agenda of judicial reform. For example: What happens to citizens’ trust in the courts during the period of reform, and how does that impact the functionality of the justice system? The changes to public support for police generated by reform also make Chile an interesting case to examine. As Fig. 2.2 shows, the approval rating of the work of police forces in Chile is the highest among its neighbouring countries; in fact, it has been steadily increasing since the implementation of the reform. Post-judicial reform attitudes towards police were no tone of the main concerns of the reformers. Overlooking public opinion was, on the one hand, the consequence of limited resources put into the evaluation of judicial reform and, on the other hand, a result of 5 For

a description of the situation prior to reform, see point 3. reform was exclusively of the criminal process. It did not explicitly lead to reform in other branches of the system. Regarding police work, public prosecutors now lead the investigative process. Concerning prison management, an increased efficiency of the system has led to quicker sentencing and, as a result, to an increase in the prison population—a situation that makes reform in the field of prison management a matter of urgency. 7 The role of the Justice Studies Center of the Americas has been relevant to the promotion of the Chilean reform model. 8 Further research is needed on whether the implementation of the Criminal Procedure Reform involved changes in crime recording practices. Future analysis of the role of administrative data in monitoring the system’s efficiency should include these considerations. 6 This

2.2 The New Debate on Law and Development

13

Fig. 2.1 Percentage of people declaring “Much/Some Trust” in the judiciary of selected countries 1996–2009 (Latinobarometro series)

Fig. 2.2 Percentage of people declaring “Much/Some Trust” in police forces of selected countries 1996–2009 (Latinobarometro series)

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2 An Overview of Judicial Reform in Latin America

the narrow technical perspective of the reformers. These were mostly economists and lawyers, who saw no need to assess the reform regarding one of its most important rationales: the concept of governance. The idea that making State regulation of social conflict fairer leads to more compliance and confidence in the judicial system was not an important part of the reform’s rationales In this sense, it is necessary to address the impact that CPR has had on the public perceptions of both the criminal justice system’s efficiency and fairness. It is also vital to analyse the implications of the prima facie “successful” assessment of the Chilean reform in the international arena9 on international promotion of the rule of law and on the analysis of democratisation processes in Latin America.

2.3 Two Steps Forward, One Step Back: A Brief Account of Chilean Criminal Policy Reforms Chile is a Latin American country located in the South extreme of the Pacific coast of South America. It has a population of around 17 million, according to the population projections derived from the 2002 national Census. Santiago is the capital, with an estimated population of seven million inhabitants, representing about 40% of the national population. From the return to democracy in 1990 until 2010, La Concertación, a centre-left political block formed by Socialists, Liberals and Christian Democrats, governed the country. This coalition furthered the neoliberal economic model established during the military dictatorship of Pinochet. However, they also developed an extensive programme of social policy, in order to alleviate the poverty and inequality resulting from this economic approach. The country is one of the most economically stable countries in Latin America, having signed a series of free trade agreements with several countries, including the USA and China, during the 2000s. There has also been considerable success in poverty reduction, with the official poverty index10 falling from 39% in 1990 to 14% in 2006. Nevertheless, the income distribution within the country remains highly polarised, showing rates far greater than those of the Organisation for Economic Cooperation and Development (OECD) countries at aggregate levels. Moreover, there are large differences, such as educational level, between regions and social groups which have 9 As DeShazo and Vargas note “the Chilean example is broadly viewed as the most successful in the

region, given its ambitious scope, the resources dedicated to the task, and the political commitment to see it through” (2006, p. 2). 10 Poverty in Chile is measured through the National Socio-Economic Characterization Survey (CASEN) and is based on a fixed monetary poverty line based on alimentary requirements. It involves both government agencies (MIDEPLAN, National Institute of Statistics—INE) and international organisations (Economic Commission for Latin America and the Caribbean—ECLAC). Several critics have been made of the poverty measurement model, mainly because its alimentary requirements have not been updated since 1986–87.

2.3 Two Steps Forward, One Step ...

15

Table 2.2 Income distribution indicators 1990–2006a (Ministry of planning—MIDEPLAN 2004, 2007) Indicator

1990

1992

1994

1996

1998

2000

2003

2006

Index 20/20 (quintile) household income

13.98

13.17

14.01

14.83

15.57

14.41

14.51

13.10

Gini (personal income)

0.57

0.56

0.57

0.57

0.58

0.58

0.57

0.54

a The

Gini Coefficient measures income or wealth inequality distribution. It has values between 0 and 1. A low Gini Coefficient indicates more equal income or wealth distribution, while a high Gini Coefficient indicates more unequal distribution. As a reference, OECD countries showed an average coefficient of 0.31 in 2000

not shown progressive changes between 1990 and 2006. These assertions are based on evidence found in inequality indices such as the Gini Coefficient (see Table 2.2) or the proportion of quintile income. The latter shows differences of more than 13 times between the income of the higher and lower quintiles. This highly unequal income distribution has been one of the basic arguments used in the discussion about urban crime rates, which have been associated with high rates of public insecurity and fear of being victimised. Some authors have shown that reducing income inequality, measured by the Gini Coefficient, can have a significantly positive effect on crime rates (Fajnzylber et al. 1999). As a matter of fact, some authors identify relative deprivation as a cause of crime (Lea and Young 1984; Reiner 2007). In the case of Chile, the return of democracy created two parallel (and closely related) initiatives within the judicial field. The first one involved the modification of the scope of criminal policy, shifting from a National Security Doctrine—characteristic of a dictatorship—to a citizen-oriented criminal policy. This new focus has been increasingly responsive to issues of common sense and public opinion about criminal issues, offering an example of penal populism.11 The second initiative involved changes in the judiciary’s structure, ranging from the creation of a Judicial Academy and reshaping of the judicial career to the fundamental change in judicial practices embedded in the CPR.

2.3.1 Criminal Policy Changes in Chile Crime has been an issue of increasing importance since the 1970s, although in Chile it has taken on a public dimension only since the return to democracy (1990). The conception of national security based on an internal enemy (represented by the subversives opposed to the Pinochet regime) and close control over the media during

11 Penal

populism is defined as “the pursuit of a set of penal policies to win votes rather than to reduce crime rates or to promote justice” (Roberts et al. 2003: 5).

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2 An Overview of Judicial Reform in Latin America

Fig. 2.3 Public concern about crime and theft and robbery reports 1989–1999 (The question about public concern was: “I am now going to show you a series of problems which worry a lot of people. Out of the list, tell me which worries you the most?” The base percentage for 1989 was 16% for the option “delinquency and disorder”. The problems listed included poverty, health, education, unemployment and price increases, among others.) (Ramos and Guzmán 2000)

the dictatorship gave way to a general concern about crime issues. In other words, attention to State security became concern about personal security. Ramos and Guzmán (2000) argue that apprehensions on issues of public order were relevant to those who voted yes in the plebiscite for the maintenance of the Pinochet rule (around 40% of the population). This concern about public order and personal safety was furthered by the control of the major media conglomerates (radio, newspapers and TV) by previous supporters of the Pinochet regime. As Fig. 2.3 shows, public concern about crime increased with the return to democracy (1990). However, the numbers have not returned to levels similar to those of 1989. Although a latecomer to the new punitive orthodoxy, Chile has followed a path very similar to that of the UK and the USA (Stippel 2006). In these countries, there has been a clear tendency towards increased incarceration and political claims for tougher sentences (Walmsley 2007). In fact, within the last 27 years, Chile has more than doubled its prison’s population.12 This increase has been maintained throughout the progressive reforms of criminal procedure made between 2000 and 2005. Figure 2.4 shows this trend. It is important to highlight that the fall in the total amount of inmates in 1990 was the result of a process of amnesty directed at prisoners incarcerated due to political activity (derived from the armed fight undertaken by several groups during the return to democracy).13 12 The use of data on incarcerated people is viewed generally as a proxy to measure the expansive or contractive character of the penal system (see Wacquant 2004). 13 Amnesty was applied to all who had been incarcerated or sentenced for political crimes or common crimes related to political activities. The original text says “Conceder amnistía amplia e incondicional en aplicación del artículo 205, Numeral 16, de la constitución de la república, a todas las

2.3 Two Steps Forward, One Step ...

17

45.000 40.000 35.000 30.000 25.000 20.000 15.000 10.000 5.000

19 80 19 81 19 82 19 83 19 84 19 85 19 86 19 87 19 88 19 89 19 90 19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07

0

Fig. 2.4 Prison population size in Chile 1980–2007 (Stippel 2006; Gendarmería de Chile 2007)

The trend evidenced in Fig. 2.4 represents the Chilean criminal policy of the period, which led to a consistent increase in the prison population (Stippel 2006). The increase reflects both an escalation in the use of prison and a reduction in the authorisation of early release and parole, which falls under the executive control of the Ministry of Justice (Stippel 2006).14 Viewed in comparative terms, the growth in the Chilean prison population puts it among the top countries in terms of imprisonment rates (see Table 2.3). This trend towards punishment in the Western world could be attributed to the development of a culture of control (Garland 2002). Other authors understand this trend as an expression of the changing role of the State. The State’s function has shifted from a social State (or welfare State model) to one characterised by a retreat from welfare and dealing with social problems through the role of criminal justice (Young 1999). Some authors refer to the countries embracing this political philosophy as penal States (Wacquant 1999; Rivera 2005). In Chile, there has been an increase in mass incarceration in the framework of the democratisation process. However, as Tiede (2004) argues, during the 1990s, there was reluctance on the part of the judiciary to prosecute cases involving human rights personas encausadas o detenidas, sujetas a proceso en cualquier tribunal de la república, o sentenciados, que hayan sido acusados por los delitos políticos y comunes conexos contemplados en el artículo 335, numeral 6 del Código Penal (…)” [Translation: Grant wide and unconditional amnesty in the application of article 205, number 16, of the Constitution of the Republic, to all processed or arrested people, subject to penal process in any court of justice of the republic, or sentenced, who were accused of political crimes or common crimes related to them contemplated in the article 335, number 6 of the Penal Code(…)] Decree N° 30–90 of 14.12.1990, available at www.bcn.cl (national congress’ library website) 14 Decisions about early release or other intra-penitentiary benefits, such as nocturnal imprisonment, are made not by penitentiary authorities, but by the Ministry of Justice’s regional delegate. This passes the responsibility from technical to political fields.

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2 An Overview of Judicial Reform in Latin America

Table 2.3 International rates of imprisonment in 2006 (International centre for prison studies, King’s College London 2006) Country

Prison population (no. in penal institutions incl. pre-trial detainees)

Date

Estimated national population (millions)

Imprisonment rate (per 100,000 of national population)

US

2,085,620

31/12/03

292.2

714

6/06

16.6

240

1524

31/12/05

0.765

199

6947

31/8/06

3.6

193

12/05

189.2

191

Chile Guyana Uruguay Brazil

39,916

361,402

England & Wales

79,861

27/10/06

53.85

148

Argentina

54,472

31/12/04

38.8

140

Colombia

62,216

7/06

46.3

134

Peru

35,642

6/06

28.4

126

Ecuador

12,251

93

1/12/05

13.2

Paraguay

5063

/03

5.9

86

Bolivia

7710

30/11/05

9.3

83

4/10/05

26.9

74

Venezuela

19,853

violations committed during the dictatorship. The executive was equally reluctant to deal with these cases. The establishment of mass incarceration coupled with the reluctance to prosecute human rights violators makes it possible to hypothesise that there was a political agreement to blame (and jail) the ordinary delinquent. In other words, the appearance of a non-politically orientated criminal served to overcome the dispute between human rights violators and courageous soldiers (or between terrorists and freedom fighters). This confrontation was at the heart of the political debate about how to deal with the crimes committed during the dictatorship, and the role of the judiciary in those years. Furthermore, the difficulty in achieving a firm political consensus, both in terms of economic and political democratisation and in the treatment of politically crimes, made criminal justice a convenient arena in which to reach the transversal agreement that governance required. Hence, a tough hand was administered by the Concertación governments. This measure could seem contrary to the reform advances, particularly with the incorporation of more procedural guarantees for the accused. Similarly, De la Barra notes that these tensions were also present in the democratisation process in Colombia and Italy (1999: 142), where the introduction of new criminal procedure codes (with explicit safeguards for the accused) was entwined with political pressure for a more efficient judiciary, working to increase crime control.

2.3 Two Steps Forward, One Step ...

19

In this sense, Chile offers an interesting case for further research, focusing on the role that judicial reform and crime control trends, imported from developed countries, can have in the construction of the necessary consensus for a governancebased transition to democracy. A State policy forms an intersectoral plan, which connects various groups of agencies, in an ongoing nature. It is not solely related to the priorities of the administration in power, but also by a political consensus involving the opposing political parties in the interest of realising long-term goals (Dammert 2006: 58). Dammert (2006) identifies three periods in the development of a State policy related to crime issues in Chile. The first period is related to the National Security Doctrine, developed throughout the dictatorship period (1973–1990). It emphasised a militarised concept of security, and based on the idea of an internal enemy, mainly constituted by political dissidents of the regime. As a result, the police forces were militarised and operated in opposition to the citizenship, prioritising the idea of principles of the State over the constitutional mandate of protection of individual rights. The second period is called the transition (1990–1997). Its main goal was the reorganisation of a police force, which features a high internal cohesion and autonomy, a product of their earlier, repressive role. The intention behind these actions was to bring the police under civil control and deal with issues such as delinquency, which began to appear in public debate and were furthered by media and politicians.15 Within this period under Aylwin’s presidency (1990–1994), the principal criminal policy issues were related to the need to subordinate the military (including the police) to civil control, and to bring about national reconciliation.16 One of the most important policy developments was the centralisation of public security under the Home Office (passing it from the Defence Ministry, where it was during Pinochet’s regime). With this transition, the separation between armed forces and public order forces signified the abandonment of the National Security Doctrine and the beginning of regaining popular confidence in police work.17 This situation contrasts with the rise in imprisonment rates, which Dammert (2003: 268) considers punitive populism.18 The third period (1998–2003) focused on reforming criminal policy, specifically crime control, criminal procedure, prison management19 and the developing of strategies of crime prevention focusing on community participation. 15 For

information on the role of media in this period, see Ramos and Guzmán (2000). measures included a general amnesty for those convicted of political crimes. 17 One particularly interesting programme was called “Open Doors”. On this, citizens could know the activities of the police by regular meetings between police officers and neighbourhood associations, and also by visiting police stations. Also, in the creation of the Public Security and Information Office within the Home Office provided intelligence analysis for the disarticulation of subversive in a collaborative way with police intelligence agencies. This institution gave rise to the Public Security and Information Division, which led to both the Public Security Division and the National Intelligence Agency. 18 An equivalent development in English language literature is the concept of penal populism (see footnote 11). 19 For information on prison management see Stippel (2006). 16 These

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2 An Overview of Judicial Reform in Latin America

In 2001, the Public Security Division (PSD) was created within the Home Office; its mission was to develop and implement criminal policy. The PSD improved the coordination of policies and integrated the participation of civilian policy analysts and researchers in the construction of criminal policy. This has meant a change in the management model of policies by incorporating, for instance, management indicators and assessment of results. There is a strong emphasis on demonstrating policies’ impact in order to maintain or increase annual budgets.20 Moreover, the implementation of the PSD led to the development of crime issues social indicators, which resulted in the development of the CCS, first carried out in 2003. In parallel, the judiciary reform contained two main objectives: first was the need to change the composition of the Supreme Court, one of Pinochet’s “legacies”, and second is to modernise the judicial process, which consisted of procedures from the early twentieth century and neglected both of the presumption of innocence and of due process.

2.3.2 Changes to the Chilean Judiciary The modifications could be seen as three different processes, focusing on high-, mid- and low-level courts. The first type involved the renewal of the Supreme Court, which was inherited from Pinochet. The second created a clear judicial career, allowing the possibility of access to mid-level courts without the previous practice of hand kissing,21 and established a formal competitive procedure for the nomination of judges. The third was the CPR, which implied a complete change in low-level courts. The first group of measures renewing the Supreme Court took place in the early 1990s. The Supreme Court judges elected during the dictatorship proved extremely docile on tackling human rights violations throughout the military rule. Even when Pinochet did not attempt to control the judiciary, the Supreme Court still did not take significant actions to pursue its constitutional commitment to protect the rule of law and human rights (Prillaman 2000). The situation worsened by several prerogatives issued by Pinochet that allowed higher judges to delay their retirement until the age of 80. This was one of the first 20 This efficiency feature of police agencies (value for money) is highly valued in the framework of the New Public Management movement. However, Hough (2007) notes that, in England and Wales, the pursuit of simple quantitative targets in police work can reduce the legitimacy function associated with it. 21 Hand kissing involved promoting oneself, personally or via influential contacts in the judiciary, in order to obtain a mid- or high-level court appointment, or an accommodated administrative law role, such as Notary. This practice dated from colonial times, lying in courtesan customs, where applicants for high-level posts, in order to be approved by the King of Spain, required the consensus of the notables’ assembly and the personal approval of the Viceroy of the viceroyalty of Peru. This meant that several of these appointments were available exclusively to close relatives of serving high-level judges.

2.3 Two Steps Forward, One Step ...

21

issues that democratic governments had to deal with: an ageing Supreme Court that made every effort possible to obstruct the promotion of younger judges to the higher courts. The result was a lack of judicial accountability, compounded by the obvious nostalgia for the dictatorship displayed by the members of the Supreme Court. Prillaman (2000: 139) asserted that one of the main dilemmas was how best to achieve reform without politicising the judiciary or undermining its authority. The process was carried out in a very cautious and multifaceted way. Initially, and mainly during the government of Aylwin (1990–1994), there was a rise in the number of members of the Supreme Court. This expansion augmented due to the need to replace corrupt Justices who were forced to resign by parliament (Prillaman 2000). The second stage was the creation, in 1996, of a clear career path in the judiciary. The establishment of the Judicial Academy allowed the young justices with the best educational credentials to be trained. Previously, judge selection was a closed process in which the president designated the judges based on a list of three proposed by the Supreme Court or the Courts of Appeal. Naturally, incorporation into the list was done mainly by the colonial practice of hand kissing. The creation of the Judicial Academy meant both a way to have a career path, based on educational qualifications pertinent to the specific areas of professional development, and a way to incorporate lawyers from the private world into the judiciary, through public calls for application to join the judiciary entry-level positions (Acuña and Alonso 2003). The loss of self-perpetuating power for the antiquated Supreme Court and gave rise to new concerns related to the efficiency of the lowlevel judiciary.

2.4 The CPR The enforcement of the CPR focused on the renewal of most judiciary practices at low-level courts. This was done through a phased model of implementation during the years 2000–2005. In order to understand the changes implemented by the CPR, it is necessary to review the key features of the previous system.

2.4.1 Previous Criminal Procedure Until 2005, criminal procedure in Chile22 was based on the Criminal Procedural Code implemented in 1906. Strictly speaking, an inquisitorial23 system inherited from Spain during the colonial age. 22 No new cases have been dealt with using this model of criminal procedure since 2005. Nonetheless, cases remaining from the old system need to be solved through it. 23 As Jackson (2002) rightly notes, the term inquisitorial is constructed in opposition to the adversarial trial. The concept is usually misleading, because it is used to define concrete legal systems, in particular those from a Civil Law tradition. The author suggests that it could be more useful

22

2 An Overview of Judicial Reform in Latin America

As mentioned previously, the judge of crime assumed the functions of investigation, prosecution and sentencing. This concentration of functions seemed reasonable in the context of a mainly rural society, where trained law professionals were scarce, but not in line with the requirements of a modern fair process and the kind of crimes in twenty-first-century Chile. Additionally, the old process was paper-based and had two stages. The first, called sumario, was done secretly. Its main objective was to investigate and establish the existence of a crime, formulate the charges and decide whether the accused was responsible for the offence. The secret character of this stage negated the role of the defence as well as the media or public knowledge. As Tiede (2004) rightly argues, during the sumario, the judge had the power to keep the accused in custody for indefinite periods prior to the actual sentencing. Usually, judges dictated sentences equal to the time the accused was imprisoned, as a way to reduce the possibility of demands against the State for illegal imprisonment (Ramos and Guzmán 2000). The second stage, called plenario, started when the judge established both the existence of a crime and the liability of the accused. In this stage, the defence lawyer, the judicial prosecutor and victims’ lawyers (where they existed) had the possibility of presenting, in writing, evidence that was added to the case file. Then, the same judge would decide the culpability and determine sentence. As De la Barra (1999) argues, the old criminal process, as in other inquisitorial systems, gave clear preeminence to the criminal investigation stage at the expense of the trial, which was reduced to a formal stage before sentencing. Moreover, before the implementation of reform, there were 79 Criminal Judges in Chile, a country of around 16 million people (Bates 2005). This meant a severely limited investigative capability, which had many practical consequences. Many cases were closed without sentence or faced extended delays in criminal investigation and sentencing. Also, limited judicial resources led to the delegation of several functions to the police or to low-level judicial functionaries (actuarios). Furthermore, the paper-based model became a problem for judicial accountability and fairness. This led to informal judicial resolution practices such as case files lost by the actuarios. When this happened, no evidence was available in the case, and many never reached a conclusion. Another practice was bribery of the actuarios to accelerate or delay the sentencing process. This was one of the examples of unequal access to justice that Criminal Procedure Reform tried to overcome. Over the years, several formal modifications were made to the original model in both the Constitution of 1980 and through some statutes implemented in the first years of democratic government.24 Nevertheless, the basic structure of the colonial inquisitive process remained throughout this period. to analyse justice systems in relation to the rights that the accused has. Furthermore, the author emphasises the relevance of defining a fair trial, based both on the idea of equality of arms between defence and prosecutor, and on the idea of an impartial adjudicator. As we will see, both arguments would lead us to classify the Chilean system as inquisitorial. 24 One example is the Leyes Cumplido (Cumplido bills), named after the Chilean jurist Francisco Cumplido. They resulted in the prohibition of the practice of keeping an accused person incommu-

2.4 The CPR

23

In this respect, two issues were particularly relevant regarding the modernisation of the judiciary. First was the process involved in a summary trial. Beforehand, a single judge had the responsibility to investigate, to coordinate police work and to sentence. This multifunctionality made them targets of criticism, because of their lack of will to prosecute economic and corruption crimes. The second predominant issue is that of the accused’s rights and the presumption of innocence. The usual presumption was that the accused was guilty and must remain in custody until proven innocent, which was harder to prove if they were poor. The arrangements for summary trial presupposed that having a single judge in charge of both criminal investigation and sentencing would yield an efficient process. However, this created a lack of accountability, as judges were at the same time prosecutors and adjudicators, leaving little space to challenge their own conclusions, except by appeal to higher courts. The unfairness of this process was amplified by extensive use of pre-trial preventive custody or remand.

2.4.2 The New Procedure The Criminal Procedure Reform in Chile was implemented in a phased model between 2000 and 2005. It changed both the criminal process and the model of justice administration. It established more guarantees in the process, which transformed the Chilean model into an adversarial process. It also increased the efficiency of the judiciary, by expanding the system and introducing new forms of case disposal. The new judicial process has three stages. The first involves the reception of crime complaints by the Public Prosecutor’s Office, which decides whether to prosecute. The second stage is the formalisation of charges in a Guarantee Court. In this institution, a single judge reviews the case and decides whether to put the accused on bail or remand during the investigative stage. The Guarantee Court also can dismiss cases, suspend the procedure due to lack of evidence or pass an immediate sentence in the case of low-level crimes (understood as those with a sentence lower than three years and one day of imprisonment). Another feature of Guarantee Courts is the plea bargain, via the implementation of the abbreviated procedure. This procedure is a way to speed up the criminal process involving the admission of guilt in cases where the charges could lead to a maximum sentence of less than five years in prison. In this situation, the Guarantee Judge can hear both parts and dictate sentence, if requested by the prosecution and accepted by the defendant (Criminal Procedure Code, Art. 406–415). The third stage takes place in the Oral Trial Court if the case is not resolved at the Guarantee Court. At this point, a collegiate jury composed of three judges hears the evidence in a public trial, rules on guilt and decides on sentence. This public feature of the trial has been one of the most distinctive features of the new process. nicado for indefinite periods and the requirement to present the accused before a judge in less than 48 h.

24

2 An Overview of Judicial Reform in Latin America

To summarise, there were five key elements to the reform. First, there was the separation between investigation and sentencing. The former is in the hands of the newly created public prosecutor and the latter under the courts of justice. This separation implied the specialisation of the management of criminal investigation, victim protection and penal prosecution. In this new context, the public prosecutor has the control of the criminal investigation, leading the work of the police agencies. Also, it has the role of protecting victims through its own unit of victims and witnesses, which works in coordination with other State institutions to maintain their safety and protection. Finally, it can be decided whether a specific crime is worthy of prosecution, based on the principle of opportunity.25 The second feature was the specialisation of the judiciary; the Guarantee Judges assure the fairness of the process and the sentence. They have the duty of deciding the legality of evidence and the enforcement of the accused’s human rights.26 In the oral trial cases, Guarantee Judges conduct the preparatory hearings and deliver all the information to the Oral Trial Court. The main duty of this court is the adjudication of guilt. To improve access to justice, the Oral Trial Court may be sited in any town within its jurisdiction and not only in the capitals, as in the old model (Ministry of Justice 2005: 13). The third feature was an explicit focus on the rights of the accused. In other words, there was an emphasis on respect for the rights of the accused (through the actions of Guarantee Judges and the newly created Public Defence Office) and victims (by the Office of Victims and Witnesses of the Public Prosecutor’s Office). Previously, the defence services for the poor27 were in the hands of the Corporación de Asistencia Judicial (Legal Aid Office), a State organisation that served as a compulsory training stage for young lawyers before their graduation. There, trainees managed poor people’s judicial cases under the direction of a licensed lawyer. In fact, passing through this agency is still a requirement for obtaining the professional lawyer licence from the Supreme Court, although it now only works on civil and family law matters. The creation of a professional defence body was a clear step towards respecting the rights of the accused and sent a strong sign about democratisation of the system. The fourth key element of the reform was the new arrangements introduced an oral-accusative procedure. These allowed several forms of alternative resolution of cases (ranging from the application of the principle of opportunity by public prosecutors at the investigation stage to reparatory agreements at the court stage). The 25 This is a tool that prosecutors have in order to improve the efficiency of the prosecution. It allows them to not pursue prosecution, or to abandon it, in cases that are deemed irrelevant because they do not seriously affect the public interest (this could include, for instance, cases of petty crime, cases where the evidence is insufficient to initiate a successful prosecution or cases of first-time offenders). 26 One of the new regulations under the reform was a tougher control of police detention. If someone is detained by the police, it has to be presented before a court within 24 h. If this does not occur, the accused should be released and requested to appear before court on the following day. 27 For an overview of access to justice for the poor in Latin America, see Vanderschueren and Oviedo (1995).

2.4 The CPR

25

Table 2.4 Comparison between old and new criminal procedure (De la Barra 1999) Old procedure

New procedure

Efficiency

– Judge manages both investigation and sentencing – Application of the “Absolute prosecution principle”. All cases give rise to a judicial process – Every process demands a complete investigation – Extensive hierarchical judicial review

– Prosecutors manage the investigation phase – Ease of case disposal at prosecutorial discretion – Abbreviated procedures – Limitations to hierarchical judicial review

Fairness

– Judge investigates and several opportunities for hierarchical review exist – Paper-based trials – One judge managed the whole process – Secretive investigation and evidence

– Judicial review of the prosecutorial investigation – Public and oral trials – Three judges during oral trial – Open investigation with limited exceptions

transition from a paper-based to an oral process involved an increased capacity for case sentencing. Actually, the reduction in the average process time in the assessment of the first stage of the CPR was around 40% (Baytelman and Duce 2003: 264). The introduction of the adversarial model allowed public testing of evidence by prosecutors and defenders against an impartial judge. This was previously impossible, given the secretive process in hands of the judges. The reform enhanced fairness, as evidence could be challenged by the parties and judged by an impartial actor. The fifth area of reform of the judicial process was the use of technologies, such as digital recording. Additionally, there was a new element of accountability, introduced by the public character of the new trials, which allowed the press and public to be present during the court sessions. It is important to highlight that no research has proved a link between the improved administration of justice and an increase in the quality of the criminal process, in terms of equality of sentencing (similar sentences for similar crimes) or in terms of equality of treatment (similar treatment regardless of the socio-economic or sociodemographic characteristics of the indicted). As Tiede (2004) argues, there has been an increase in the use of abbreviated proceedings, which is the earliest point at which Guarantee Judges can dispose of cases. Also, plea-bargaining has been mainly developed at this stage of the trial, prior to the development of a full trial. This has clear management advantages, due to the cost of the procedures involved, and could be an incentive to dispose of most at this stage, regardless of the establishment of the facts of the case (Tiede 2004:15). De la Barra (1999) proposes a summary of legal changes introduced by the CPR, which is shown in Table 2.4.

26 Table 2.5 Phases of implementation of the CPR (Ministry of Justice 2005)

2 An Overview of Judicial Reform in Latin America

Phase

Start

Regions

First

16.12.2000

IV and IX

Second

16.10.2001

II, III and VII

Third

16.12.2002

I, XI and XII

Fourth

16.12.2003

V, VI, VIII and X

Fifth

16.06.2005

Metropolitan region of Santiago

2.4.3 The CPR’s Model of Implementation A significant feature of the CPR in Chile was the manner in which it was implemented. Considering the geography of the country, the reform was implemented in successive phases, with the aim of facilitating organisational learning and allowing the large-scale training of professionals required (prosecutors, judges and defenders).28 The implementation of the CPR was based on a five-phase strategy between 2000 and 2005. The geographical distribution of the country, and the phases in which the reform was implemented, can be seen in Table 2.5 and Map 2.1. The decision on where to start was taken on the basis of demographic and criminal activity variables, prioritising regions with less reported criminality (e.g. region IV) and with specific demographic configurations, such as region IX, notable for its ethnic composition (Ministry of Justice 2005). This model allowed the collection of administrative data to assess the impact of the reform on the criminal justice system (Baytelman 2002; Baytelman and Duce 2003), both in terms of reduction in average times of sentencing and in terms of workload. The latter made it possible to calculate the human resources necessary for subsequent phases. According to official information, at the start of the reform, there were only 79 Criminal Judges in Chile, who would both investigate and pass sentence. The implementation of the reform created 413 Guarantee Judges and 396 Oral Trial Court Judges, as well as more than 2000 professional and administrative posts. This created an enormous increase in the capacity of the system. The new Offices of Public Prosecutor and Public Defence also had a significant impact on the human resources involved in the administration of justice. At the beginning of the reform, 642 prosecutors and more than 3000 administrative and professional personnel aided in the operation of the Public Prosecutor’s Office. These numbers were further expanded with the development of more specialised branches within the office, such as the juvenile prosecution units developed as part of the Youth Justice Reform in 2007. The establishment of the Defence Office meant a professionalisation of the legal defence system. The new office either hired new legal professionals or outsourced defence counsel through a competitive bidding system. When implementation of the 28 Little research has been conducted on the link between progressive implementation and the improvement of the operation of public services. A phase model should allow organisational learning and a better assessment of risks for the new intakes of the reform.

2.4 The CPR Map 2.1 Stages of implementation of the Chilean CPR (Ministry of Justice 2005)

27

28

2 An Overview of Judicial Reform in Latin America

reform began, there were 145 public defenders directly employed and 270 external attorneys working in public legal defence through private providers.

2.5 The CPR as a Public Policy Features of the CPR relate to its impact on other parts of the judicial system. The CPR as a public policy had an impact on other sections of the judicial system, such as police work, prison management and the judiciary structure. Police work has been affected by the creation of the roles of public prosecutors, who now lead the process, and put special emphasis on the legality of evidence gathering and the way police deal with the accused’s human rights. Also, the roles of Guarantee Judges and public defenders further protect these rights. Regarding prison management, the boost in efficiency of the judiciary, added to a traditional criminal code29 meaning an increase in the number of sentenced prisoners and a steady reduction in alternative measures. The relatively high prison population is a long-lasting phenomenon, as shown in Fig. 2.5.30 Furthermore, the tendency in political spheres towards penal populism has contributed to these circumstances. In this context, Stippel (2006) claims that the trend towards higher rates of imprisonment has also meant a change in the balance between sentenced and remanded prisoners. Under the inquisitorial system, the majority of the prison population was on remand or in preventive custody, mainly due to the extensive powers of the Criminal Judge at the stage of the sumario. Within the new system, most prisoners have already been sentenced under a penal code that involves very long sentences. Hence, one of the new challenges for the Chilean criminal justice system is the reform of the criminal sentencing code. Some efforts have already been made in this field by the executive, through the creation of an expert commission for reform. However, a new penal code is still far away from implementation. The expansion of the judiciary has meant a generational change, a reduction in the average age of judges and other professionals in the justice system. There was also a change in the way the new legal actors started to behave, passing from the sobriety of the old courts to the public exposure of the new public and oral procedure. These new forms of the legal actors started a debate about judicial issues and about the visibility of judges, prosecutors and defenders as public figures. The new judicial processes have received more publicity than the old system, leaving them very exposed to the media. Nevertheless, politicians have raised the youthfulness of new judges as a weak point of the system. Allegedly, their inexperience predisposes them to practice law with excessive respect for legality. Therefore, they are too lenient in sentencing, even 29 The Chilean CPR is considered a pure development, as the sentencing tariff was not transformed at the same time. Currently, the revision of a new criminal code is under discussion. 30 Stippel (2006: 72) shows that 53% of the penal population is serving a sentence of five years or more.

2.5 The CPR as a Public Policy

29

Imprisonment

Alternative Sentences

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

Imprisonment

10.948

12.310

13.222

14.734

16.344

17.866

18.257

19.024

21.076

23.140

Index

100

112

121

135

149

163

167

174

193

211

Alternative Sentences

26.893

29.172

30.369

31.813

31.699

30.813

28.739

28.587

27.595

26.369

Index

100

108

113

118

118

115

107

106

103

98

Fig. 2.5 Evolution of imprisonment and the alternative sentencing index 1996–2005 (Gendarmería de Chile 2007)

in the case of serious offenders. There have been calls for less discretion in sentencing, along the lines of mandatory sentencing, that responds to fear of crime.31

2.6 Stakeholders in the Implementation of the CPR32 With the return to democracy, and following the regional trend, several external agencies promoted judicial reform in the region, and particularly in Chile. The usual approach taken by these agencies was the funding of initiatives from civil society, in part as a way of avoiding corruption through the participation of several stakeholders in the process of judicial reform (Dakolias 2001). Several actors were involved in the process of design, negotiation and implementation of the CPR. However, several authors have identified the stages of negotiation and design as the critical ones (DeShazo and Vargas 2006; Baytelman and Duce 2003). In the case of the Chilean judicial reform, it was developed through both internal and external actors. National actors were based at the Judicial Development Centre at 31 Although

there has been discussion about what fear of crime is (see Farrall 2004; Hough 2004; Lee 2007), in this paper the concepts of “fear” and “worry” about crime will be used interchangeably and refer to a long-lasting dimension of fear. 32 In this work, actors and stakeholders will be used interchangeably.

30

2 An Overview of Judicial Reform in Latin America

the Corporación de Promoción Universitaria (University-Promotion Corporation). This think tank was linked to the Christian Democratic political party, the party of the first two presidents after Pinochet’s dismissal. At the CPU, the main discussions were related to the limitations of the old procedure and the need to transform the criminal justice system. Several of the researchers at the centre were relevant actors both in the drafting of the code and the implementation of it. Over time, many CPU researchers migrated to Diego Portales University, a private university, which took law as one of its specialities. Diego Portales University became the most influential academic institution in the design of the reform, mainly in relation to the adaptation of the oral trials from the American system and in developing a management-oriented perspective towards justice administration. The University of Chile also had some influence on the reform; its academics participated mainly in drafting the code with a more continental-European perspective and a strong emphasis on human rights and processal guarantees. Another relevant internal actor was the Paz Ciudadana Foundation, a think tank developed through the initiative of the entrepreneur Agustín Edwards (owner of the biggest and most influential Chilean newspaper, El Mercurio). This foundation was involved members of different political parties. Ramos and Guzmán (2000) argue that the foundation was responsible to a large extent for the creation of the consensus about a State policy on crime issues, through a mix of political influence, the facilitation of open debate at the Foundation meetings and media support provided by El Mercurio.33 It is important to note that external actors operated mainly through internal actors. Ramos and Guzmán (2000) identify economic aid from the Tinker Foundation to Paz Ciudadana. Also, the US Agency for International Development (USAID) cooperated with judicial training and was involved in the creation of the Judicial Academy (Sarles 2001), working with CPU and Diego Portales University. Other actors developed more specific projects; for instance, in 1999, the Inter-American Development Bank (IADB) funded a programme to develop alternative dispute resolution in business through the Santiago Chamber of Commerce (Biebesheimer 2001). The implementation stage of the judicial reform involved the direct participation of external agencies. While USAID funded the creation of the Organization of American States’ Justice Studies Centre of the Americas34 in 2000, other agencies, such as the GTZ, established direct relations with the Chilean Government. The responsibility of the implementation stage was shared by multiple actors. First, a high-level commission composed representatives of the Ministry of Justice, the President of the Supreme Court, the National Chief Prosecutor and the National Defender. Second, a group of senior judicial authorities with more technical skills supported the first body. Third, a Criminal Procedure Reform Coordination Unit 33 For

a full history of the involvement of Agustin Edwards in Paz Ciudadana and the role of El Mercurio, see Ramos and Guzmán (2000). 34 The CJSA is based in Santiago de Chile and is currently the main exporter of the Chilean model of judicial reform to the region. It is directed by Juan Enrique Vargas, a former CPU researcher and current Diego Portales University Professor.

2.6 Stakeholders in the Implementation of the CPR

31

planned, coordinated and monitored the implementation of the reform, aiding this high-level commission.35 Although of central importance, the Unit had several limitations to its initial functioning. The CPR was the first large-scale reform in this field in Chile, and the necessary expertise was non-existent locally. To address this, the Chilean and German Governments cooperated to establish the judicial reform Project in Chile. This leads to the GTZ Project, which was located in the Ministry of Justice and shared facilities with the CPR Coordination Unit, allowing its integration with government. The GTZ Project had several features that made it highly influential in the implementation of the CPR. At the beginning of the project, the main concern was improving legal drafting and creating proposals to solve implementation issues that arose during the first phases. At that time, the coordination of the GTZ Project was in the hands of Professor Cornelius Prittwitz, a recognised law academic at Frankfurt University. After the initial stages of reform, the coordinator of the project was Jörg Stippel, a lawyer without the academic profile of Prittwitz, but an efficient manager who focused on inter-agency coordination as one of the key areas of the project’s activity. The GTZ Project had a focus on technical assistance in terms of applied research and a role as a broker between the actors of the system. In other words, if the Ministry of Justice had problems in coordination, the GTZ Project, as an external actor, could help to overcome possible barriers. This was certainly true of issues involving differences over management, such as the leadership of the public order forces, where the Public Prosecutor’s Office and the Home Office still have overlapping powers in terms of prevention and prosecution. Two features made the project an interesting case. First, it developed extensive training for the different actors involved in the reform. These activities ranged from international experts’ visits to large-scale visits by Chilean professionals to Germany. This relationship materialised in the 2002 establishment of a centre from the University of Heidelberg in Santiago de Chile and the offer of a postgraduate diploma on judicial reform, extensively funded by the GTZ Project. Second, the GTZ developed several kinds of promotional materials, some of which could be seen as innovative (or even naïve) approaches to legal education. Two were particularly interesting. One was the adaptation of the Little Red Riding Hood fable into comic format, where the ferocious wolf was accused of attempted manslaughter, recreating the model of an oral trial. The other was the development of a music disc, with several national artists hired to develop songs alluding to the changes to the justice system promoted by the reform but maintaining a commercial form.36 These materials were widely

35 The former chief of this unit was Carlos Maldonado, who later became Minister of Justice between 2007 and 2010. 36 The use of music as a way of promoting reform is a component of another judicial reform project, proyecto acceso, managed by the California Western School of Law. This was one of the institutions with which the project had close relations, mainly due to the personal friendship of their coordinators.

32

2 An Overview of Judicial Reform in Latin America

disseminated and formed part of the initiatives developed by the Ministry and the project to promote reform.37

2.7 Conclusions The modernisation of the judiciary played an important role in the recent consolidation of Chile’s democracy. During the 1990s, the judiciary was the focus of several mid- and high-level reforms, such as the renewal of the older Supreme Court and the opening up of judicial careers. Nonetheless, these transformations took place within a wider view of governance. This was underpinned by a stable (although restrictive) political system and the successful reduction in poverty, while still maintaining an exclusive economic system generating high inequality. As Faúndez (2005) suggests, the study of the judicial reform is entwined with the transformation of political institutions in developing countries. Tiede (2004) suggests that the increase in confidence in the judiciary at low-level courts allowed the prosecution of cases that were previously impossible for political reasons. Some of these cases involved Pinochet, his family and high-level military officers suspected of human rights violations. While the prosecutions could reinforce the idea of equality under the law, several cases involving Pinochet were not pursued. CPR has strengthened the rule of law by improving access to justice, through better protection of the rights of the accused, and by enhancing the operational efficiency of the system. It has also reduced conflict related to democratisation in the political and economic arenas. In the political arena, CPR has been seen by some politicians as recognition of human dignity and equality before the law. For others, it has meant a constraint on the pursuit of effective crime reduction. These critics argue that the application of the law by the new judges is too lenient and to some extent guarantee impunity. These harsher views are part of what is usually defined as penal populism (Roberts et al. 2003). Regarding evaluation of the reform, it has been limited and performed mainly through funding of external agencies (Baytelman 2002; Baytelman and Duce 2003). The only government-driven initiative was the commission for the evaluation of the Criminal Procedure Reform implementation, in partnership with Paz Ciudadana, which, at the same time, played a role in the implementation. The report relied mainly on administrative data and low-quality opinion polls. After final implementation of reform in 2005, the commission has been inactive. 37 Among the initiatives were a monthly magazine, TV commercials, radio announcements, posters

in police stations, educational charts and several kinds of merchandising. Nonetheless, one of the most efficient ways of promoting reform was the TV series “Justicia para todos” (Justice for all). This weekly series, shown on the National TV Channel, showed the activities of a public prosecutor and a defender who, while rivals in criminal trials, were also competing for the attention of a female protagonist.

2.7 Conclusions

33

In these circumstances, it is curious, to say the least, that there is no assessment on the effect of the reform on the justice system’s public trust. This is especially odd, given that this was one of the original concerns of the CPR. In this regard, proper evaluation could illuminate theories about the role that judicial reform can play in justice. It could also establish the role of judicial reform and crime issues in the Chilean process of democratisation.

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Prillaman, W. 2000. The judiciary and democratic decay in Latin America: Declining confidence in the rule of law. Westport, Connecticut: Praeger. Ramm, A. 2005. Imputados. Santiago de Chile: Universidad Diego Portales. Ramos, M., and J. Guzmán. 2000. La Guerra y la Paz Ciudadana. Santiago de Chile: Lom Editores. Reiner, R. 2007. Law and order. An honest citizen’s guide to crime and control. Cambridge: Polity Press. Rivera, I. 2005. State form, labour market and penal system. Punishment and Society 7: 167–182. Roberts, J., L. Stalans, D. Indermaur, and M. Hough. 2003. Penal populism and public opinion: Lessons from five countries. New York: Oxford University Press. Rostow, W. 1960. The stages of economic growth: A non-communist manifesto. Cambridge: Cambridge University Press. Salas, L. 2001. From law and development to rule of law: New and old issues in justice reform in Latin America. In Rule of law in Latin America: The international promotion of judicial reform, eds. P. Domingo, and R. Sieder, 17–46. London: Institute of Latin American Studies. Sarles, M. 2001. USAID’s support of justice reform in Latin America. In Rule of law in Latin America: The international promotion of judicial reform, eds. P. Domingo, and R. Sieder. London: Institute of Latin American Studies. Sherwood, R. 1998. Judicial systems and national economic performance. In Justice Delayed, eds. E. Jarquín, and F. Carrillo, 31–38. Judicial Reform in Latin America, Washington, D. C.: InterAmerican Development Bank-Johns Hopkins University Press. Stephenson, M. 2000. A Trojan horse behind Chinese walls? Problems and prospects of USSponsored “Rule of Law” reform projects in the People’s Republic of China. Law and Development Paper No. 3. CID Working Paper No. 47. Cambridge, MA: Harvard. Stippel, J. 2006. Las Cárceles y la Búsqueda de una Política Criminal para Chile. Santiago de Chile: Lom Editores. Stone, C. 2006. Crime, justice, and growth in South Africa: Toward a plausible contribution from criminal justice to economic growth. CID Working Paper No. 131. Cambridge, Massachusetts: Harvard Center for International Development. Tiede, L. 2004. Committing to justice: An analysis of criminal law reforms in chile. CILAS Working Paper N°22, Center for Iberian and Latin American Studies California: University of California, San Diego. Ungar, M. 2002. Elusive reform: Democracy and the rule of law in Latin America. Boulder: Lynne Rienner. Universidad Diego Portales. 2003. Informe Anual de Derechos Humanos 2003 (hechos de 2002). Santiago de Chile: Universidad Diego Portales. Universidad Diego Portales. 2004. Informe Anual de Derechos Humanos 2004 (hechos de 2003). Santiago de Chile: Universidad Diego Portales. Universidad Diego Portales. 2005. Informe Anual de Derechos Humanos 2005 (hechos de 2004). Santiago de Chile: Universidad Diego Portales. Universidad Diego Portales, Facultad de Derecho. 2006. Informe Anual de Derechos Humanos 2006 (hechos de 2005). Santiago de Chile: Universidad Diego Portales. Vanderschueren, F., and E. Oviedo. 1995. Acceso de los Pobres a la Justicia. Santiago de Chile: Ediciones Sur. Wacquant, L. 1999. Les Prisons de la Misère. Paris: Raisons d’agir. Wacquant, L. 2004. Punir les Pauvres: Le nouveau gouvernement de l’insecuritésociale. Marseille: Agone. Walmsley, R. 2007. World prison population list, 7th ed. London: International Centre for Prison Studies. Weber, M. 1978. Economy and society, vol. I. Berkeley: University of California Press. Young, J. 1999. The exclusive society: Social exclusion, crime and difference in late modernity. London: Sage.

Chapter 3

The Analysis of Trust and Criminal Justice: Between Legitimacy and Order

3.1 General Academic debates on crime and justice have changed focus since the 1990s. The classic focus on crime reduction has given way to concerns related to confidence in the criminal justice system (Roberts and Hough 2002, 2005; Sunshine and Tyler 2003a, b; Tyler 2006). These concerns, which build upon the classic debates on domination and legitimacy associated with Max Weber, have seen a revival through Tom Tyler and procedural justice theorists. Procedural justice focuses on how law works, highlighting the dynamics of authority and legitimacy that support or inhibit criminal behaviours. The main question of this body of research is: “Why do people obey the law?” The hypothesis is that people obey laws that they consider to be fair. The proposal roots in the fact that people are more focused on fairness of the procedures than on the perceived outcomes. In this manner, confidence in justice is based on motivation to break the law and on preparedness either on the case of victims or witnesses to cooperate with justice systems as. This chapter focuses on the procedural justice perspective and will discuss the neo-Durkheimian approach used by this model to establish a link with social theory. Finally, it proposes an interpretation based on Weber’s theory, arguing the utility of its dual approach for the analysis of criminal justice reforms.

3.2 An Informational Bases Approach to Law and Order This work analyses the assumptions underpinning the analytical framework developed by law and order approaches. The analysis is based on the perspective proposed by Sen (1979), which has greatly influenced development studies. This work has modified the way we understand development, from an income-based process to a liberty-increase perspective. Sen (1999) analysed the philosophical bases of © Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_3

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decision-making models and concluded that the main differences between public choice models could be found in their informational bases. According to the author, different models of decision-making are based in broader analytical frameworks related to theories of distributive justice. Based on Sen’s (1999) approach, it is possible to analyse the rationale of law and order policies, by focusing on the information they consider as relevant. We can expect that policy makers with different theoretical approaches to crime would make a differential use of the information at their disposal.

3.2.1 The Idea of Informational Basis: Sen The creation of and the academic debate around crime surveys has raised important concerns about their analysis. On the one hand, Sutton (2007) argues that victimisation analysis could be enriched with the incorporation of new types of crime. On the other hand, authors such as Lee (2007), Ditton and Farrall (2007) and Farrall et al. (2006) argue that concepts such as fear of crime are unclear and need more research in order to be valuable in policy analysis. This uncertainty is a result of criminology’s self-development as a discipline, in other words, the more development achieved in a specific field, the more ambivalent are its core concepts (Bauman 1991). Nevertheless, comparable information is necessary to make rational decisions; if a person lacks information, their decision-making process relies entirely on intuition (Gargarella 1999). Sen’s (1999) approach is related to the idea of collective choice, or how the State could achieve better decisions to fulfil public interest by improving the allocation of scarce resources. The author argues that the State needs to make decisions based on a specific criterion of social justice. Based on this assumption, the author analyses the different informational bases required by economic models to fulfil the postulates of different theories of justice.1 His work shows that behind the models of welfare calculation lie a substratum of moral decisions. Sen proposed that these moral decisions could be represented in the informational basis selected for each model, which would help to determine the base of inequality that prevails in a given society. The design of public choice models is also influenced by the kind information available to perform large-scale analysis to assess welfare and determine inequality.

1 This

book will not discuss in detail the features of each justice model in formal terms; these can be found in Sen (1977). Each model of justice supposes a different principle of authority or way in which it obtains legitimacy. This is clear in the distinction Sen makes between the informational basis of utilitarianism and Rawls’ theory of justice, based on the difference between utility units (allowing full comparability units to aggregated levels), and welfare levels (allowing limited comparability in aggregated terms, but comparisons of ordinal levels/welfare levels). In other words, while utilitarianism has one universal measure to assess utility, the formalisation of Rawls’ model allows comparability based on the categorisation of distribution of “primary goods” (Sen 1977: 1545–7).

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In this way, the development of social indicators has experienced a boost due to Sen’s theory of inequality analysis.2 This focus on public choice allows Sen’s model to be transferable to the analysis of other areas of State action. In the case of crime surveys, there are a number of indicators widely used (such as victimisation and report rates); however, a theory capable to use this and complementary information to account for the causes of victimisation and report has not yet fully being developed. Therefore, it is necessary to analyse the rationality behind different law and order policies to understand how it could constitute a reliable base for the development of Sen’s theory applications in the field of criminal justice and development studies.

3.3 A Rational Choice Approach to Crime Control The core idea behind this model of analysis is the rational actor, whose tendency towards criminal activities is the result of a careful evaluation of both possible rewards and punishments of a given criminal action. In fact, crime prevention strategies are based on the belief that anyone could, given the appropriate incentives, take part in criminal activities. As Rock (2007) explains, the rational choice approach evolved from a long tradition in utilitarian theories. This proposal was reintroduced by Becker (1968) and found a criminological partner in the control theories (or general deterrence or prevention theories) of the 1960s. This construction could help the understanding of the decision-making process, particularly policy decisions. In the case of criminal policy, the informational basis of this general deterrence/crime prevention approach rests on: a rational actor, a set of physical constraints (crime) and psychological constraints (fear of being caught/victimised), which affect or distort the rational assessment of risks. In this view, citizens have the capability to assess their own risk, reducing the State’s role to provide security in public spaces and reacting when crime occurs. The idea behind crime control policies is that people, if all other variables are constant, will try to be happier3 within the framework of a given set of rules or laws. Within this setting, crime is seen as a constraint to people’s search for happiness. The number of outsiders (criminals) must be reduced, and security provided to guarantee the exercise of freedom for the majority of the population, both in objective and in subjective dimensions (victimisation and fear of crime, respectively). As a result, 2 The Human Development Index, used by the United Nations, was developed and expanded through-

out the world using Sen’s ideas. One of its main indicators is the Sen Index. as happiness is the classic Benthamite formulation. On the contrary, Sen (1999) notes that utilitarian formulations, such as the model of rational choice, reduce this concept to decisions or choices. Nonetheless, to facilitate discussion and because current trends in research are leading to its operationalisation (Kahneman et al. 2003), this book uses this association between utility and happiness.

3 Utility

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law-abiding people would take their own preventive measures in order to reduce their risk and acquire peace of mind. In this way, crime control is related to a general formulation of economic utilitarian rationality. This formulation is based on the idea of economic incentives for committing crime motivated by (a) the risk of being caught (crime control); (b) the severity of punishment; and (c) the economic returns derived from other non-criminal activity (opportunity cost). This approach to crime control involves manipulation of these three factors in order to obtain short- or long-term crime reduction.4 Clarke (1980) incorporated this rational actor perspective on crime control, based on the risk of being caught, into criminal justice theory. He proposes three strategies to control crime: first, making harder to commit crime (e.g. through the limitation of access to places or goods and the control of facilitators such as guns or drugs); second, increasing offending risks through police surveillance, guards and natural surveillance; and third, reducing the rewards from crime through elimination (e.g. reducing cash transactions).5 In this manner, this model puts the focus on short-term practicality rather than long-term efforts in reducing social causes of crime and is useful for crime reduction in time-specific frameworks. Nonetheless, Garoupa (2003: 6) notes, [in the classic economic approach to crime] in terms of economic efficiency, most scholars have argued that legal rules, including criminal law, should be chosen having in mind KaldorHicks efficiency.6 In particular, offences yielding a criminal gain higher than the social damage7 should not be deterred.

Subsequently, the question is: How can social damage be assessed in criminal law from an economic perspective? There are two answers to this inquiry. First, there exists the economic and social cost approach. This states that the costs associated with prosecuting and punishing the criminal are higher than the economic cost of crime, for instance in low-level occasional thefts. The second possibility is an abstract, Benthamite approach. Within this, the cost equates to the number of victims and the limitations for exercising liberty at a societal level. From this theory, it is possible to find a similar critical focus in the fields of criminology and economics: the criteria of interpersonal comparison. This is mentioned 4 The

classic examples of strategies based on an increase in risk are those of the situational crime prevention approach. The deterrent effect of high sentences, in particular the death penalty, was supposed to have an effect in the short run. Opportunity costs are generally associated with long-term strategies based on education, training and employment. 5 For further discussion, see Rock (2007: 16–17) and Cornish and Clarke (1986). 6 Kaldor-Hicks efficiency is an extension of Pareto efficiency. It is based on the idea that an investment is efficient if it makes someone better off. If someone is worse off as a consequence of the investment; the one who is better off has the ability to theoretically pay their losses. Pareto efficiency is usually referred to as someone becoming better off while no one becomes worse off (Garoupa 2003). 7 An example of these situations is the starving man who stole apples from a farm. In this case the benefit, the maintenance of life, is greater than the social loss, the apples. The same could be applied to speeding when going to a hospital. However, the Kaldor-Hicks efficiency model implies that the mere possibility of damage restitution allows its moral acceptance.

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by Sen (1999) as the principle involved with utility comparison, at an aggregate and individual level. The author argues that one of the limitations of the utilitarian view is the neglect of individual differences. In this view, all people are considered equal, both formally and materially.8 This critique is comparable to the British left realists’ premise of the real effects of crime on the working class in the UK (Lea and Young 1984). The authors argue that the working class was doubly limited in the exercise of their liberties; first by constraints derived from the inequalities in distribution of property and means of production and second by the unequal distribution of social damage from crime.9 Regarding crime surveys, it is possible to argue that the informational basis provided by them has been a good companion to the utilitarian approach of law and order. However, limitations exist: opportunity theorists, especially those studying victimization, have made the most progress toward developing a situational theory of crime, but their emphasis on the victim rather than the offender imposes serious theoretical and methodological limitations (Birkbeck and LaFree 1993: 171)10

These limitations are related, on the one hand, to the social-aetiological critique of left realists (i.e. the negation of social differences between groups) and, on the other, the assumption of a link between victim and offender (which has led to the analysis of risk groups). In opposition to the rational action approach, procedural justice theorists (Tyler 2006; Tyler and Huo 2002) suggest that people comply with the law because of the fear of being punished or to reduce their transaction costs. Instead of that, they argue that people obey the law because it makes them feel part of something (a valued group, or a more abstract idea of society or political community).

3.4 Law and Order and Procedural Justice Hough and Roberts (2007: 198) have highlighted the need for crime surveys to incorporate and refine questions relating to trust in law. It questions the following: British crime policy’s ‘discovery’ of confidence as an important issue has never been accompanied by any explicit justification for its importance. Does the government need to foster 8 Sen argues that, although two people may eat the same amount of food, their utility will not be the

same if one of them has a stomach-parasitic disease. Utilitarianism, through neglecting the need for interpersonal comparisons, sees both people as enjoying the same utility (Sen 1999: 67–70). 9 The main indicators derived from the first sweeps of crime surveys in Britain were related to three dimensions: victimisation, police reports and perceptions of crime. As Hough (2007) notes, the objectives were to provide information about crime prevalence and its allocation where and to help reduce misperceptions about crime. 10 Although the original concern of Birkbeck and LaFree (1993) related to academics that analyzed victimization patterns to search for a match between victim and offender, such as multiple victimization analysis; the use of rational choice strategies is usually accompanied by the identification of possible targeted victims.

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3 The Analysis of Trust and Criminal Justice: Between … public confidence in justice because people are tax-payers, because they are voters or because popular compliance with the law is what justice is all about?

This debate is not easy to resolve, because it questions the normative idea of legitimacy.11 However, Tyler and colleagues have drawn increasing attention to it by discussing authority and procedural justice (Tyler 2006; Tyler and Huo 2002; Tyler et al. 1998; Sunshine and Tyler 2003a, b). Starting from psychological theories of association and identity, this theoretical approach offers an empirically based approach to the processes underlying compliance with authority. Although some criticism was raised when this formulation was extended to societal levels (Melossi 1991), it is certainly a major challenge to the rational action model. This theoretical approach offers an alternative way of explaining compliance with the law, based on the idea of the perceived fairness of authorities’ decisions. Hough and Roberts (2007) emphasise that this approach provides a feasible link between opinion regarding the criminal justice system and commitment to respecting social order and complying with the law.

3.4.1 The Procedural Justice Approach A special feature of the procedural justice approach is that it seems consistent with the mainstream contemporary macro-sociological work. It is similar to Giddens’ (1991) regarding disembedding abstract systems and discussing the possibility of re-embedding (which face-to-face interaction could offer) to restore institutional legitimacy and simultaneously further individual security. As analysed by Giddens (1991: 114), the source of ontological security was not the relationship between individual and abstract systems, but personal relations among people. In the early development of the human individual, basic trust in stable circumstances of self-identity and the surrounding environment – ontological security – does not in the first instance rest upon a sense of the continuity of things or events. Rather, as we have noted, it derives from personal trust and establishes a need for trust in others which no doubt endures, in one form or another, throughout life. Trust in persons, as Erickson emphasises, is built upon mutuality of response and involvement: faith in the integrity of another is a prime source of a feeling of integrity and authenticity of the self. Trust in abstract systems provides for the security of day-to-day reliability, but by its very nature cannot supply either the mutuality or intimacy which personal trust relations offer.

The procedural system approach has very distinctive features. Its premise is that the individual rests on a social base, not only for early development, but also in 11 Zelditch (2001) notes that the concept of legitimacy can be analysed using two dimensions: first, a

model of distributive justice, which Tyler (2006) does not discuss; and second, a theory of authority, which is the focus of Tyler’s work. A development of the social identity theory is the model of system justification theory (Jost et al. 2001) which includes conceptions of unfairness in distributive justice, in order to assess justifications for specified types of apparently non-rational decisions.

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order to maintain his/her self-identity. This is different from the utilitarian idea of cooperation in maximising individual benefit, where individuals are not bounded by social constraints. This idea, derived from the tradition of social constructionism (Berger and Luckmann 1966), has developed within social psychology, specifically in the analysis of identification with groups for the formation of the self which has generated interesting results for the analysis of group behaviour and opinion. Social identity theory proposes that people are motivated by the desire to develop and maintain a favourable self-image, which is nurtured through group participation (Tyler et al. 1999: 2). In other words, this self-image is made up of a personal self, which consists of idiosyncratic features of the individual person, and a social self that reflects features of the group.12 Turner and Onorato (1997) suggest that is difficult to separate personal and group identity. The individual is part of a dynamic process of self-categorisation (self-stereotyping), which reinforces the similarities within groups and the differences between them.13 On a social level, this means several groups interacting and generating social categories in a dynamic way and generating inequality structures within themselves.14 Thus, both the nature of everyday life in late modernity15 and the precarious nature of social protection, individuals taking responsibility for the caring risks, involve a sense of ontological insecurity. Therefore, people try to control uncertainty by distancing themselves from other social groups and strengthening self-categorisation, as a way to reassert ontological security. These socially created inequalities among groups have effects on the individual. Within this context, Tyler (1989) develops a second concept: the group-value model. This suggests that expectations related to justice or distribution models are affected by one’s perceived status in a given group. Mainly, people with a certain social status (i.e. high or low) will have concerns about distributive justice (i.e. the outcomes of goods distribution or justice), and people with an unclear social status will choose to focus on the fairness of outcome distribution, the procedural justice approach. One of the strengths of Tyler’s theories is its clear focus on policy design, addressing the challenges to the criminal justice system and the maintenance of social order (Tyler 2006; Tyler et al. 1997; Tyler and Huo 2002). The author argues that police interaction and perceptions of their fairness would bring a better identification with 12 This could be done through the exaltation of some of the group’s social features, for instance, showing physical symbols of membership, such as particular clothes, or more subtle symbols, such as a particular way of talking or acquired tastes. On the other hand, groups could enhance categories that enable them to point out that they have a disfavoured position in society, as proposed by the System Justification Theory (Jost et al. 2001). 13 This is similar to the idea of field proposed by Pierre Bourdieu, although the author distinguishes a set of basic tenets in play in this process of self-recognising and social identity construction. 14 These inequality structures are based on previous distribution of material and symbolic goods (known as the position in the sphere of production in a Marxist perspective or in social stratification according to Weber) which, by their own relational nature, are dynamic. 15 This is exemplified by Garland (2002) by the idea of a continuous administration of time, a product of the contingent nature of work and the need to organise life around it in order to maintain lifestyles.

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the macro-group. Also, he proposes the development of procedural fairness, rather than the search for outcome fairness, as a basis of authority (Tyler 2006; Tyler and Huo 2002). In this manner, by incorporating fair procedures when contacting people, there will be more trust. However, Smith (2007), based on Skogan (2006), recognises the existence of asymmetry between satisfactory and unsatisfactory contacts with the police. While unsatisfactory interactions lead to poor perceptions about police, satisfactory encounters do not have an equal, opposite effect. To extend this approach to a sociological perspective, procedural justice theorists should add to their analysis the variable of social inequality. This can be traced back to Weber’s seminal ideas in two ways: first, in the search for explanations, and second, in the idea that groups differentiate themselves by their way of life. Moreover, the analysis of social issues derived from procedural justice has led to a neo-Durkheimian approach of macro-social identity, similar to the idea of collective conscience (Sunshine and Tyler 2003a; Jackson and Sunshine 2007), which also builds on Weberian or Marxist-Gramscian approaches (see Jost et al. 2001). In summary, the key dilemma which procedural justice must solve to become the basis for a theory of society is the link between inequality and legitimacy.

3.5 Procedural Justice and Theories of Legitimacy The sources from which legitimacy emerges in the construction of the State have been analysed by political philosophy. To consider a social order as just and legitimate, social theory must examine the sources and functions of authority. In the case of the criminal justice system, the focus is on the relationship between authority functioning and the constitution of society. An important aspect of the concept of legitimacy is the way a social order and its model of conflict resolution are aligned with a society’s collective consciousness. Hough and his colleagues (2010) indicate that legitimacy has been analysed from two different perspectives. On the one side, political philosophers have discussed the normative dimensions of legitimacy, examining the objective requirements that a regime, or order, should fulfil to be considered legitimate.16 On the other side, sociologists and psychologists have researched the way people interpret institutions and perceive legitimacy (Weber 1978). Perceived legitimacy exists when authorities are seen as being entitled to command thus creating in subjects the obligation to obey (Hough et al. 2010: 2). Following the same theme, Zelditch (2001) conducted an historical overview of the different theories of legitimacy. For analytic purposes, he distinguished between objective (normative) and subjective (empirical) theories of legitimacy. The former referred to those who assume an automatic alignment between the norm and behaviour (i.e. those who say what we ought to do in order to maintain legitimacy). 16 As the authors rightly assert, this involves a decision about what is to be considered just or good (Hough et al. 2010: 2).

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The latter applied to those who describe how people behave. Zelditch (2001) proposes the concept of subjective legitimacy, by defining something as legitimate if “it is in accord with the norm, values, beliefs, practices and procedures accepted by a group” (2001: 33).17 From a different perspective, we can see the concept of legitimacy, as it is related to institutional trust. In other words, legitimacy is a property of institutions and, especially of political institutions, whose concerns are mainly political and social stability. Giddens (1991) differentiates trust in institutions from trust in people. The former has no expectation of actual encounter and is based on a perceived sense of normative alignment. According to Weber (1978) theory, legitimacy is the active consent of the dominated towards the exercise of authority. To determine what drives this consent, Zelditch draws on the works of Aristotle, for whom the concern for political stability is a problem of legitimacy of rewards. This view, with inequality of rewards leading to political crisis (2001: 36), has been one of the main lines of analysis of legitimacy. For Zelditch (2001), there are two main approaches for the analysis of legitimacy—theories of justice and theories of authority.18 While theories of justice study the conditions under which actors accept a given assignation of rewards as just, theories of authority analyse the conditions under which actors accept a moral obligation to obey a system of power (Zelditch 2001). The similarities have various similarities including, for instance, that what is legitimate is considered as rightful for winners and losers, rulers and dominated, and it results in stability. They also have differences, which stem from the distribution of differential goods. For distributive theories, the goods are rewards whose unequal distribution can provoke redistributive pressures or the acknowledgement of inequality. For theories of authority, the goods are power, and its unequal distribution can cause compliance problems or struggles for it. Another difference between the two theories is the approach used to analyse inequality. Distributive justice theories compare with other persons or groups and apply proportionality principles. Meanwhile, neither of these are found in theories of authority (Zelditch 2001: 39), whose basic principle is the justification of dominance on the basis of specific motives supported by the shared values and beliefs of the group. Although legitimacy has been a concept usually related to political legitimacy, it is a phenomenon that permeates the whole social order, independent of the level of analysis used. Legitimacy can be analysed as a macro-level phenomenon (e.g. in Weber’s formulation of the State), or as a meso-level phenomenon as in Tyler’s organisational analysis of micro-level processes (such as the analysis of presentation in groups carried out by Goffman). Whatever the case, Connel (1992)—quoted in Zelditch (2001: 39)—identifies legitimacy’s main features 17 The concept of subjective legitimacy proposed by Zelditch (2001) is similar in its content to the concept of trust developed earlier in this chapter. 18 There are other lines of development of legitimacy theories, such as those which analyse the effect of legitimacy on the stability of informal status orders (see Zelditch 2001).

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3 The Analysis of Trust and Criminal Justice: Between … the legitimacy of any social structure is indicated by the fact that it is supported by those who have nothing to gain from it, even by those who could benefit from some other structure.

Zelditch (2001) classifies the most widespread models to analyse legitimacy into consensus theories, conflict theories and mixed theories. Consensus Theory is the oldest approach for the explanation of how legitimacy is based on consensus. A basic representation of this kind of theory is in the works of Aristotle and reaches a complete and objective formulation with the structural functionalism of Parsons (1991). The basic elements of the theory of consensus include: the acceptance of the social order is voluntary; consent is based on believing in norms and values (as distinct from instrumental orientations); both rulers and the ruled share the same norms values and beliefs; it is either consensus, or in some theories the group interest, that makes norms and values right and therefore legitimate; and a social or political order is only stable if it is legitimate (Zelditch 2001: 41). Conflict Theory is the most advanced version of the conflict theory developed by Machiavelli in the sixteenth century. It involves the following set of basic assumptions: the fundamental basis of both action and order is instrumental; rulers’ and the ruled’s real interests are in conflict; it is power that makes the rules binding; pure power cannot make people believe that a rule is right; ideology, myth and ritual are necessary to legitimise rules, making them right by masking the real interests of the rulers and the ruled; and in the long run, pure power is unstable unless legitimised. In this sense, legitimacy is a prerequisite of any social order (Zelditch 2001: 42). One of the most well-known conflict theories is Marxism and its account of false consciousness. According to Marxism, both in its classic and more contemporary variants, the ruling class controls the means of symbolic production (education, art, religion). By these means, it masks the social processes of proletariat exploitation, interpreting them in a convenient way to preserve its benefits. This false consciousness of the ruled is then the basis for social stability. In brief, theories of consensus and conflict are distinguishable by two main features: first, that exists the instrumental orientation of action (i.e. the actors are driven by instrumental motivations and not by norms, beliefs or moral concerns), second, conflict theory always presupposes an objective observer. In the case of Marxism, this objective observer is capable of seeing the true interests of the ruling class, and therefore being normative, while, at the same time, being able to describe the mechanisms that drive social change. Mixed Theories integrate both consensus and conflict approaches. The most prominent is Weber’s (1978), which is based on the idea that people guide their actions with a purpose, and this orientation gives rise to different sources of legitimacy. At an individual level, Weber identifies four basic orientations of action: rational (instrumental and value-based), traditional and emotive. This mixture of instrumental, value-based and non-rational orientations allows Weberian theory to be highly flexible, both in explaining concrete situations, and for group-level analysis. Essentially, Weberian theory works in a multilevel way, explaining simultaneously individual behaviour (through analysis of social action) and group behaviour. In the case of social order, it does so through the concept of validity.

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According to Weber (1978), the validity of an order relies on the probability that people will guide their actions on its basis.19 Not everyone, at an individual level, will believe in the justification that gives rise to the established order, but most of the members of the group will follow its commands, either through belief or social control. In this sense, valid order exists as a cognitive order of orientation; this means that even when an individual does not agree with the justification for the order, they do believe in its existence. In a real situation, a multiplicity of orientations defines compliance with social order; however, Weber identifies some pure types of legitimate order. They can be classified either as purely subjective reasons (affective motives; rational belief in the validity of an order as the expression of ultimate values; belief in the need to follow an order as a way to achieve salvation), or by the expectation of specific external effects, in a purely instrumental way (Weber 1978: 34). According to the Weberian tradition, order always involves domination. The typical form of domination by the modern State is based primarily on a legal-rational model. In other words, there is a rational belief that the law represents an objective orientation for social action. To achieve this, the modern State generates its own specialised agencies to deal with the administration of the law: the courts and the police. What is a distinctive feature in the Weberian model of legitimacy is the acknowledgement of the existence of an individual psychology of legitimacy. This is composed of individual-level attitudes towards social order and the existence of a grouplevel psychology of legitimacy. To define a given social order as legitimate, and for the analysis of the effects of legitimacy on social stability, the group-level analysis is highlighted. This is dependent on a collective process of validation (Zelditch 2001: 45).

3.6 Inequality and Legitimacy: Sociological Intakes into Procedural Justice The idea of legitimacy and the role of the criminal justice system as an authority can be analysed from a psychological group-value model perspective (Tyler 1989). Within this theory, people recognise themselves as a part of a group, in this case, a political community, in the sense of Anderson’s imagined communities (Anderson 1991). Based on their perceptions about the criminal justice system, people fall into different broad profiles. An account of those groups should be taken into consideration when analysing authority at a societal level. Hence, the group theory serves as a basis for the relational model of authority.

19 “Action, especially social action which involves a social relationship may be guided by the belief in the existence of a legitimate order. The probability that action will actually be so governed will be called the ‘validity’ of an order” (Weber 1978: 31).

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According to the relational model, people’s concerns about procedural justice are not primarily attributable to instrumental views, but about their role in valued groups (Tyler 1989; Ståhl 2006). As Ståhl (2006: 11) explains, according to the relational model, procedural fairness effects are attributable to concerns about one’s relationship to the group the authority represents. Such relational concerns should be stronger in encounters with an authority from a group with which one identifies, than in encounters with an authority from a group with which one does not identify.

The relational model postulates the existence of a generalised idea of social justice, from which the conditions for legitimacy of a given social order arise. Singer (2006: 232) notes the difficulty of reconciling different notions of legitimacy, arguing that …whether one bases one’s concept of legitimacy on natural law, a particular religious foundation, universal reason, a notional contract, a principle of justice, an ideal discourse, a formally rational legality, or an empiricist view of social norms will affect what one consequently determines to be legitimate in a legal or other governmental system. The resulting differences regarding what constitutes legitimacy may be quite extensive. Moreover, it is generally difficult and may even be impossible to resolve differences that stem from different foundational principles.

These foundational principles involve both an idea of society and a principle of authority. According to Singer (2006), the use of different conceptual frameworks for the analysis of authority and legitimacy does not represent a mere terminological approach, but it could be a representation of deep political differences. From a psychological point of view, Tyler et al. (1997: 4) claim that justice assessments are done by individuals and mediated by their group status.20 Justice is not a set of principles derived from objective sources, such as religious authorities. It is also an idea that exists within the minds of all individuals. This subjective sense of what is right or wrong is the focus of the psychology of justice.

This approach contains some problems, particularly when it deals with inequality. In fact, Tyler’s (2006) approach could be seen as an application of Weber’s theory and could even be defined as a technology derived from it. However, the approach that the procedural justice perspective takes in its analysis of social control is a neoDurkheimian one. Tyler and Boeckmann (1997) note that the main reasons to support or be against punishment are related to concerns about the community and shared moral values. In this regard, Jackson (2004) analysed a British rural setting and his findings show that the main source of identification between people and the police is that the latter represent community values (Sunshine and Tyler 2003a; Jackson and Sunshine 2007). The weakness of Durkheimian approaches lies in their assumption of social organisms. The idea of social solidarity does not consider social conflict, which is clear in the idea of organic solidarity as a result of division of labour. Giddens 20 This

argument is similar to the one of Weber (1978) concerning the understanding of the State by the coordinated social action of individuals. Nonetheless, although Weber (1978) analyses the sources and ways of maintaining authority and legitimacy, he does not create a theory of legitimacy with normative content.

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(1991: 7) defines this as a mixture of industrialism and moral individualism. From a neo-Durkheimian perspective, Jackson and Sunshine (2007: 220–221) note that “as identification with the community increases, it is predicted that the importance of concerns about social cohesion will decrease. Individuals derive their identity and seek status-relevant information from group membership”. From the perspective of the self-categorisation model, social conflict and domination exist in the community. Therefore, to uncritically adopt a neo-Durkheimian macro-approach to analyse crime issues could disregard social conflict. It could also lead to the rejection existence of sources of authority, such as religion or custom. The problems in neo-Durkheimian analysis lie in its understanding of society as a community of values. It is also possible to analyse society from the perspective of a more conflict-oriented (and more coherent) idea of community, which is present in social psychologists’ distinction of in-group and out-group authority. In this sense, Anderson (1991: 6–7) proposes the idea of a nation as an imagined political community and imagined as both inherently limited and sovereign. It is imagined because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion. [And it is] limited because even the largest of them encompassing perhaps a billion living human beings, has finite, if elastic boundaries, beyond which lie other nations. No nation imagines itself coterminous with mankind.21

In the same way, Anderson (1991: 7) attaches the character of sovereignty or control over a determined territory to the imagined community, which is entrusted to a specific institution: The State. According to Anderson, “the gauge and emblem of this freedom is the sovereign state”. Nonetheless, the most salient feature of Anderson’s definition is related to the concept of community. As he defines it, “[Nation] is imagined as a community, because, regardless of the actual inequality and exploitation that may prevail in each, the nation is always conceived as a deep, horizontal comradeship” (1991: 7). At this point, it is relevant to link this concept of nation with the sources of procedural justice. Anderson’s nation has several similarities with the idea of in- and out-groups, which constitute the basis of procedural justice. First, both concepts assume that a nation is based on an important distinction: the idea of community and belonging. Second, both approaches assume that nations are dynamic. Third, and most importantly, both concepts assume that, even if domination and exploitation could exist within a group, its members will put it aside based on a perceived comradeship, which works through legitimacy. Nevertheless, the concept of nation does not solve the foundational question: How does a consensus-based approach account for differences in distribution of rewards and power in groups? At a micro-level, psychologists base their answer on cognitive dissonance (Festinger 1957) or use the social justification theory (Jost et al. 2001). However, at societal levels these limitations tend to be disregarded, as they are in Anderson’s (1991) approach. 21 One

interesting point in Anderson’s proposal is the role of printed literature in the construction of the nation as an imagined community (Anderson 1991).

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Weberian theory can be viewed as a solid conceptual source, given its focus on conflict in unequal societies, and in particular on the role of the State as a vehicle of rational authority. Such a perspective could shed further light on people’s sources of authority (both rational and non-rational). This theory could also enable analysis of group identity preservation strategies and non-compliance with the law, such as social closure strategies (Parkin 1979). From the individual perspective, Tyler (1989) notes that people or groups with well-defined status are less aware of social cohesion, meaning that inequality does have a role in the way people perceive fairness. Regarding the concept of community, Habermas (1986) argues a macrotheoretical opposition of system (systeme) and lifeworld (lebenswelt). Put simply, if people cannot negotiate their validity pretensions in face-to-face interaction with a police officer, and the officer fulfils his role as a member of a bureaucratic institution, the response or identification will be low. However, interaction is a deeply embedded component of human nature, which the process of rationalisation cannot reduce (Habermas 1999). In the frame of the criminal justice system, Cheliotis (2006) shows how personal initiatives and interactions can break through the “iron cage”22 and help humanising institutions, bringing back more humane rationales into the system. Bradford et al. (2009) show how the inclusion of attitudinal information could mean increasing awareness of the effects of policing. In this sense, if the purpose of procedural justice is to promote the interaction between police and public by bringing them closer together and by sharing the same horizon of sense, the theoretical approach of Habermas represents an interesting interpretation of Tyler’s work. In this regard, Habermas argues that it is possible to share a similar view on the community, but that view is always the result of an on-going process of negotiation. Therefore, the idea would be to support honest communication between institutions and the public and to create an informational basis to underpin this.

3.7 Conclusion The use of an approach more abstract than criminal policy theory helps to highlight its limitations. In the case of the informational basis perspective, criminal justice displays the rationale behind crime control models and its legitimacy. Rational action theory is the basis for safeguarding individuals to maximise their happiness. Moreover, the procedural justice approach objective is to maintain a healthy self-concept, based on being part of a valued group. On a societal level, rational action theory involves an asocial public, while procedural justice approaches tend to view people as part of “imagined communities” (Anderson 1991).

22 The

iron cage is a concept proposed by Weber, meaning the predominance of procedure in bureaucratic decision-making, losing its connection with human concerns.

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Sociologists who specialise in issues of inequality have highlighted the utility of rational action theory models and its correspondence with large-scale quantitative data (Goldthorpe 1996). However, the non-reflexive use of this approach for administrative purposes has led to its discredit. In other words, failure to include contextual information in such formulations has generated an abuse of research instruments in evaluations (Feilzer 2009). From another perspective, the analysis of criminal justice from a procedural justice perspective has not solved the problem of distributive justice in unequal societies. Even though it has been considered the basis of a new era for criminal justice research, a closer look at its theoretical foundations reveals serious deficiencies when applying this theory on a social level. This is because its assumption of community pertinence as the basis of social identity does not take into account inequality. Even if Weberian theory can explain the control of conflict, they cannot clarify how groups can increase or decrease their social integration, without invoking issues such as false consciousness (Jost et al. 2001). Habermas (1999) approach to social action could represent an alternative to the limitations both of rational action and individual procedural justice models. The author understands action as communicative and instrumental; while the latter can make the world work, the former can make it more comprehensible. This theoretical perspective can help to analyse both systemic concerns, such as service efficiency, and the social integration effects derived from this systemic action. Furthermore, a communicative action approach, acting as a complement to the procedural justice model of justice, can increase the utility of procedural justice approaches for the evaluation of State reforms. Having a clear idea of what institutions do and what they are supposed to do,23 we can define a research agenda focused on how to increase both their operational efficiency and social prestige. Sen’s (1999) approach also contributes to the analysis of criminal justice system operations. This approach considers that development could be achieved by increasing people’s capabilities and eliminating the barriers to freedom. In the case of criminal justice, the approach has been to develop institutional legitimacy. It focuses on how people are empowered to exercise their freedom to access justice. From a Habermasian perspective, institutional legitimacy could be commanded with strategic purposes, and not only with the objective of creating an equal community. However, the idea of empowering citizens to use their freedom to access justice changes the focus from institutional strengthening to societal development. From a communicative action perspective (Habermas 1999), it is possible to identify gaps in public understanding and acceptance of the criminal justice system. Hence, it is relevant creating programmes to increase the capability of the public to access justice. In other words, the action of State reform should allow people to exercise their rights and also be recognised as citizens.

23 This

is a difficult challenge for policing in the procedural justice approach. Is policing supposed to control crime or to serve as a social integration barometer?

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The main driver of procedural justice is its empirical support. Nevertheless, this is not sufficient to create an adequate approach to explain the justice system’s operation within society. Therefore, the creation of a more integrative approach is the next challenge for the analysis of the criminal justice system and for the development of a consistent theory for the international promotion of the rule of law.

References Anderson, B. 1991. Imagined communities: Reflections on the origin and spread of nationalism. London: Verso. Bauman, Z. 1991. Modernity and ambivalence. Oxford: Polity Press. Becker, G. 1968. Crime and punishment: An economic approach. The Journal of Political Economy 76: 169–217. Berger, P., and T. Luckman. 1966. The social construction of reality: A treatise in the sociology of knowledge. London: Penguin. Birkbeck, C., and G. LaFree. 1993. The situational analysis of crime and deviance. Annual Review of Sociology 19: 113–137. Bradford, B., B. Stanko, and J. Jackson. 2009. Using research to inform policy: The role of public attitude surveys in understanding public confidence and police contact. Policing: A Journal of Policy and Practice 3(2): 139–148. Cheliotis, L.K. 2006. How Iron is the Iron Cage of New Penology? The role of human agency in the implementation of criminal justice policy. Punishment and Society 8 (3): 313–340. Clarke, R. 1980. Situational crime prevention: Theory and practice. British Journal of Criminology 20 (2): 136–147. Cornish, D., and R. Clarke. (eds.). 1986. The Reasoning Criminal: Rational Choice Perspectives on Offending. New York: Springer. Connel, C. 1992. Legitimacy. In Encyclopedia of sociology, vol. 3, eds. E.F. Borgatta, and M.L. Borgatta, 1095–1099. New York: Macmillan. Ditton, J., and S. Farrall. 2007. The BCS and the Fear of Crime. In Surveying crime in the 21st century, eds. M. Hough, and M. Maxwell. Cullompton: Willan. Farrall, S., J. Jackson, and E. Gray. 2006. Everyday emotions and the fear of crime: Preliminary findings from ‘Experience & Expression’, Experience & Expression in the Fear of Crime. Working Paper No. 1. ESRC Grant RES 000 23 1108. Feilzer, M.Y. 2009. Not Fit for Purpose! The (ab-)use of British Crime Survey data as performance measures for individual police forces. Policing: A Journal of Policy and Practice 3 (2): 200–211. Festinger, L. 1957. A theory of cognitive dissonance. Stanford, CA: Stanford University Press. Gargarella, R. 1999. Las Teorías de la Justicia después de Rawls. Barcelona: Paidós. Garland, D. 2002. The culture of control: Crime and social order in contemporary society. Oxford: Oxford University Press. Garoupa, N. 2003. Behavioral economic analysis of crime: A critical review. European Journal of Law and Economics 15 (1): 5–15. Giddens, A. 1991. The consequences of modernity. Cambridge: Polity Press. Goldthorpe, J. 1996. Rational choice theory and large-scale data analysis. Oxford: Oxford University Press. Habermas, J. 1986. Teoría de la Acción Comunicativa I: Racionalidad de la acción y racionalización social. Madrid: Taurus. Habermas, J. 1999. Teoría de la Acción Comunicativa I: Racionalidad de la acción y racionalización social. Madrid: Taurus.

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Hough, M. 2007. Research on victimisation and insecurity in Britain. National Report for CRIMPREV presented at the seminar on crime prevention and social integration policies. Barcelona, 19th and 20th April 2007. Hough, M., and J. Roberts. 2007. Public opinion, crime and criminal justice: The british crime survey and beyond. In Surveying crime in the 21st century, eds. M. Hough, and M. Maxfield. Cullompton: Willan. Hough, M., J. Jackson, B. Bradford, A. Myhill, and P. Quinton. 2010. Procedural justice, trust, and institutional legitimacy. Policing 4 (3): 203–210. Jackson, J. 2004. Experience and expression: Social and cultural significance in the fear of crime. British Journal of Criminology 44: 946–966. Jackson, J., and J. Sunshine. 2007. Public confidence in policing: A neo-durkheimian perspective. British Journal of Criminology 47: 214–233. Jost, J.T., D. Burgess, and C. Mosso. 2001. Conflicts of legitimation among self, group, and system: The integrative potential of system justification theory. In The psychology of legitimacy: Emerging perspectives on ideology, justice, and intergroup relations, eds. J.T. Jost, and B. Major, 363–388. New York: Cambridge University Press. Kahneman, D., E. Diener, and N. Schwarz. (eds.). 2003. Well-being: The foundations of hedonic psychology. New York: Russell Sage Foundation. Lea, J., and J. Young. 1984. What is to be done about law and order? London: Pluto Press. Lee, M. 2007. Inventing fear of crime: Criminology and the politics of anxiety. Cullompton: Willan. Melossi, D. 1991. The cultural embeddedness of social control: Reflections on the comparison of italian and North-American cultures concerning punishment. Theoretical criminology 5 (4): 403–424. Parkin, F. 1979. Marxism and class theory. NY: Columbia University Press. Parsons, T. 1991. The social system, 2nd ed. London: Routledge. Roberts, J., and M. Hough. (eds.). 2002. Changing Attitudes to Punishment: Public opinion, crime and justice. Cullompton: Willan. Roberts, J., and M. Hough. 2005. Understanding public attitudes to criminal justice. Maidenhead: Open University Press. Rock, P. 2007. Sociological Theories of Crime. In The Oxford handbook of criminology, eds. M. Maguire, R. Morgan, and R. Reiner, 4th ed., 3–42. Oxford: Oxford University Press. Sen, A. 1977. On weights and measures: Informational constraints in social welfare analysis. Econometrica 45 (7): 1539–1572. Sen, A. 1979. Equality of What? The Tanner lecture on human values, delivered at Stanford University May 22, 1979. www.tannerlectures.utah.edu/lectures/sen80.pdf. Sen, A. 1999. Development as freedom. Oxford: Oxford University Press. Singer, M. 2006. Legitimacy criteria for legal systems. King’s Law Journal 17 (2): 229–254. Skogan, W. 2006. Asymmetry in the impact of encounters with police. Policing and Society 16: 99–126. Smith, D. 2007. New Challenges to police Legitimacy. In Henry, A., and D. Ståhl, T. 2006. Determinants of fairness-based and favorability-based reactions to authorities’ decisions. Unpublished PhD dissertation. Netherlands: Leiden University. Sunshine, J., and T. Tyler. 2003a. Moral solidarity, identification with the community, and the importance of procedural justice: The police as prototypical representatives of a group’s moral values. Social Psychology Quarterly 66: 153–165. Sunshine, J., and T. Tyler. 2003b. The role of procedural justice and legitimacy in shaping public support for policing. Law and Society Review 37: 555–589. Sutton, M. 2007. Improving national crime surveys: With a focus upon strangely neglected offenders and their offences, including frauds, hi-tech crimes and handling stolen goods. In Surveying Crime in the 21st century, eds. M. Hough, and M. Maxwell. Cullompton: Willan. Turner, J., and R. Onorato. 1997. Social identity, personality, and the self-concept: A selfcategorization perspective. In The Psychology of the Social Self, ed by T.R. Tyler, R.M. Kramer, and O.P. John, Mahwah, NJ: Erlbaum.

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Tyler, T.R. 1989. The psychology of procedural justice: A test of the group value model. Journal of Personality and Social Psychology 57: 850–863. Tyler, T.R. 2006. Why people obey the law. Princeton: Princeton University Press. Tyler, T.R., and R. Boeckmann. 1997. Three strikes and you are out, but why? The psychology of public support for punishing rule breakers. Law and Society Review 31 (2) :237–266. Tyler, T.R., and Y. Huo. 2002. Trust in the law: Encouraging public cooperation with the police and courts. New York: Russell Sage Foundation. Tyler, T.R., R. Boeckmann, H. Smith, and Y. Huo. 1997. Social justice in a diverse society. Boulder: Westview. Tyler, T.R., R. Kramer, and O. John. (eds.). 1998. The psychology of the social self. Mahwah, NJ: Lawrence Erlbaum Associates. Tyler, T.R., Y.J. Huo, and E.A. Lind. 1999. The two psychologies of conflict resolution: Differing antecedents of pre-experience choices and post-experience evaluations. Group Processes and Intergroup Relations 2: 99–118. Weber, M. 1978. Economy and society, vol. I. Berkeley: University of California Press. Zelditch, M. 2001. Theories of legitimacy. In The psychology of legitimacy: Emerging perspectives on ideology, justice and intergroup relations, eds. J. Jost, and B. Major, 33–53. New York: Cambridge University Press.

Chapter 4

The Analysis of Attitudinal Information in Crime Surveys

4.1 General This chapter aims to describe variations in the research agendas pursued by victimisation surveys. Also, it examines the challenges that the incorporation of attitude measurement has presented to the original aim of measuring crime to support crime control. Finally, the chapter discusses the justifications or promises derived from the crime surveys agenda and the challenges they encountered during the development of criminology. The analysis suggests that the measurement of crime-related attitudinal information such as fear of crime and attitudes towards the criminal justice system has raised important challenges related to the intellectual agenda behind crime surveys. These challenges point to the idea of crime reduction based on a utilitarian, rational actor and the expected result of a more content society with lower crime rates. This chapter will briefly review the status of crime surveys as a criminological tool, focusing on the history of the British Crime Survey (BCS), as a representative of the intellectual path of the tool. It takes account of the arguments for the incorporation of subjective information into crime surveys and the main debates that this information raises for policy and academic debate.

4.2 Crime Surveys as an Intellectual Project Traditionally, the main objectives of crime surveys have been to estimate the proportion of unrecorded crime and to generate information related to crime circumstances that allows the design of crime control strategies. Its original formulation is based on a utilitarian, rational choice model that has met some success in reducing victimisation. In utilitarian terms, crime surveys pledge that with more information, law-abiding citizens (potential victims) would be free of the “burden” of crime. The formalised © Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_4

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version of this is well reflected in the rational choice-based works of Clarke (1980), and Cornish and Clarke (1986). This perspective assumes the existence of objective deterrents to and facilitators of crime, linked to situations instead of subjects, which could be rationally managed to produce a deterrent effect on rational actors. The development of the British Crime Survey (now known as the Crime Survey for England and Wales) was strongly based on this perspective and shaped by these original commitments. Furtherly, questions concerning perception of crime levels and attitudes about crime were included in the design of crime surveys. As Hough (2007a) points out, the attitudinal items were included in the surveys because ever-increasing crime rates were not directly related to the possible risks. It was expected that this could give citizens more information to assess their situation in a better and more rational manner.

4.2.1 Crime Surveys as a Criminological Project Crime surveys are considered a key tool in criminological research (Mayhew 2000). They represent the main source of information (besides police recorded data) for informing policy decisions on crime issues. From a technical perspective, they are the product of the development of sampling and data-processing techniques which allowed the collection and analysis of large amounts of data. The history of crime surveys starts with a series of surveys carried out by the President’s Crime Commission in USA during the Lyndon B. Johnson administration (Biderman et al. 1967). These provided the basis for what is now known as the US National Crime Victimization Survey (Lee 2007; Mayhew 2000; Van Dijk 1992). Later, crime surveys regained prominence in the 1960s following concerns about crime issues, which was deepened by the rise in recorded crime data during the 1970s (Maguire 2007; Downes and Morgan 2007; Lee 2007). In Britain, the BCS was carried out for the first time in 1982 and has been repeated with varying elements since then. As Maguire (2007) indicates, large-scale crime surveys such as the BCS represented a substantive advance in the analysis of society and crime and its social context through the expansion of information available for the study of crime. Previously, this had only been based on official police reports. Moreover, the information provided by the surveys allowed the development of studies that analyse offences and victims’ features and research about the reliability of official crime rates.1 1 The now-classic research in Nottinghamshire about police recording practices is the main example

of this (Farrington and Dowds 1985). This research showed that police forces across a country—or even inside the same police station—can have different ways of valuating an activity as a crime, affecting the administrative information used at local or central levels for decision-making. Maguire (2007) distinguishes three different elements that can influence variation in officially recorded crime trends: the change in legislation and recording rules; police recording behaviour; and people’s reporting behaviour (Maguire 2007: 258).

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The types of surveys differ in geographical scope and unit of analysis (Mayhew 2000). First, there are household surveys, which use the household as the basic unit of sampling. These surveys range in geographical representation from international, to national, to local. Second, there are victim surveys, which focus on specific populations, such as young people, students (including levels of bullying and violence at school) and women (to assess gender-specific and domestic violence). These special surveys focused on certain population aim to overcome limitations related to sampling (e.g. people under 16 years old, who are not considered in the BCS) and questionnaire design and methods (as in the case of domestic violence or fraud, which are better obtained with self-reporting methods).2 Finally, commercial victim surveys focus on the victimisation of legal entities, such as corporations, complementing household-based information to provide an estimate of total crime. Additionally, Maguire (2007) differentiates between victimisation surveys, which focus on the analysis of offences experienced by victims, and self-report surveys, which describe offenders’ experiences. Mayhew notes the difficulty of comparing the results of these sources of information due to methodological issues. She argues (2000: 97) that the main feature of the surveys done to date has been their differences in approach, both as regards the samples taken and the sorts of questions asked. This has resulted in such widely different estimates of the extent of victimization that comparisons between them are, frankly, fruitless.

These differences certainly limit the use of different sources of quantitative information for policy design and evaluation.3 This is especially problematic from the perspective of the use of meta-analysis and systematic reviews. Meta-analytic approaches are currently being promoted to analyse social issues and is warmly welcomed by policy makers to improve the quality of their assessment methods,4 but their use should consider the basic need of conceptual comparability. 2 The

computer-assisted self-interview (CASI) has been the strategy that the BCS has followed. In this, the interviewee is allowed to answer directly on the laptop, maintaining privacy. More sophisticated variants of this type of interview include the use of headphones and self-response questions presented in audio format, helping those with literacy or visual impairments. 3 One possible solution is the design of integrated systems of household surveys, which are composed by a master framework from which all social survey samples are selected, and a basic sociodemographic set of questions in all social surveys in the system. This could allow complementary social statistics and the aggregated use of data. In the case of crime surveys, aside from having a basic set of comparable socio-demographic information, it is necessary to define a basic set of crimerelated concepts for the international measurement of victimisation. Although crime is defined nationally by each country criminal code, there are conducts that can be recognised in different cultures as deviant (such as assault, homicide and rape) that allow for international comparison. This challenge is in no way something unique to crime statistics. The paradigmatic example is the measurement of labour statistics. In labour statistics, there are basic rules for international comparison (for instance, the international definition of employment and unemployment), as well as freedom to allow different countries to generate different measures of employment in accordance with their internal legislation. 4 This has been promoted by institutions such as Campbell collaboration, the ESRC Centre for Evidence Based Policy at King’s College London and the Evidence Informed Policy and Practice Centre based at University College London. Morgan and Hough (2007) note that this was welcomed

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The topic of crime surveys (or large-scale victimisation surveys) has been associated with the so-called administrative criminology or criminology carried out by State agencies. The examples of the Home Office Research and Planning Unit and the BCS are taken as a paradigm. Large-scale crime surveys require long-term funding, given that they show most fruitful results through long-term trends. Taking this into account, the State is certainly the most obvious agency for financing crime surveys.5

4.2.2 The Ambiguous Academic Standing on Crime Surveys The development of crime surveys furthered the status of criminology as a very successful and independent social science. As Maguire (2007: 246) highlights, Criminology in universities has grown from a minor subject taught only as part of other degrees, to a flourishing specialist discipline employing several hundred academics, many of them engaged in empirical research. Many other organizations in the public, private, and voluntary sectors also now employ their own researchers to analyse agency records or conduct surveys to produce new data (at national, regional, or local level) about specific types of crime.

Nonetheless, crime surveys also characterise a group of researchers based in State agencies, who design and analyse them. Other academics labelled these researchers pejoratively because they were seen as politically servile and more focused on methods than on important theoretical questions behind crime analysis. As Morgan (2000: 65) comments, Criminology, as entrepreneurial gambit, occupational title and disciplinary descriptor, thrives despite the predilection of its practitioners to claim for their own contribution some prefix – new, radical, left, critical, realist, left-utopian – signifying enquiring purity, theoretical significance and social relevance while attaching to the work of others a label – positivist, administrative, jobbing, right, right utopian – signifying political subservience or corruption, theoretical impotence or social irrelevance.

Despite all the theoretical variations in academic criminology (including the prefixes attached to them), and all the trends in academic debate, the main agenda of criminological research is dominated by the governmental project of crime control and the search for an efficient criminal justice administration (Morgan 2000; Garland by the Home Office Research and Statistics Directorate when seeking to raise research quality standards after difficulties encountered during the evaluation of the Crime Reduction Programme. A critique of the evidence base for criminal policy can be found in Hope (2005) and Morgan and Hough (2007). 5 As it is widely spread, international corporations seek investment and profits in the short run. The analysis of trust has several stakeholders to respond to, so long-term funding to maintain research is limited (generally this type of funding is used on big cross-sectional studies of one intake, or small sample studies). International organisations generally establish “umbrella models” in partnership with national agencies in order to generate comparative studies (as in the case of the International Crime Victimization Survey). A good discussion of British criminology funding agencies can be found in Morgan (2000).

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2002). Likewise, Morgan (2000) argues that the development of academic criminology has been linked to the development of policy-oriented criminology. This argument holds when considering that the major demand for criminological knowledge comes from the State; therefore, the criminology labour market is strongly regulated by the State as well.6 Nonetheless, as Sutton (2007) argues, these academic debates have not meant an increase in the quality of crime surveys. This is due both to the non-technical critiques provided by critical criminologists, which does not consider how methodological issues should be improved, and to the silence of administrative criminologists in the academic debate. On the other hand, Maguire (2007) recognises the value of the anti-quantitative criminologists’ critique on the development of crime surveys, which points out the limitations and troubles that crime surveys must overcome. In summary, English-speaking criminology is highly empirical due to the discussion around the information generated by crime surveys. Thus, all current criminological variants rely largely on crime surveys as a basic source of information, methodological critique or theoretical discussion (Maguire 2007). Even “radical criminologists” continue to use crime surveys as a basic source of information, advocating, among other topics, the reduction of the geographical scope from national to local as a way to show the faults of hegemonic large-scale surveys (Jones et al. 1986). This empirical feature of English-speaking criminology gives it a different status from criminologists from other parts of the world. As Morgan states regarding European criminologists “their theoretical edifices are often a sign of weakness rather than strength” (2000: 77). Nonetheless, as Gabriel and Greve suggest in the case of fear of crime, a large part of criminological work is based solely on interpretations of empirical information, leaving a lack of theoretical development of the discipline (2003: 600). This is not limited to the fear of crime topic but is a feature of English-speaking criminology, which is perhaps understandable given its State-based character. Taking these points into consideration, this book argues that the contemporary strength of criminology has rested largely on the promises of the crime survey agenda. It will also discuss how the development of crime surveys is challenging these promises.

6 This

is a product of the normative feature of criminology. Morgan (2000: 76) suggests that, “To the extent that criminology is a discipline prostituted to government it is because criminology is indissolubly a normative discipline. Normative because criminology, uniquely among the branches of social sciences, has its subject matter and built into its title a social problem: crime. And crime is a category which is politically and not academically determined”. This being one of the most salient features of the discipline, it is not difficult to see the ethos of criminology as an explicit recognition of this feature of social engineering, defining itself as a practical discipline, and an attempt to carry out basic science in relation to a normative phenomenon.

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4.3 Crime Control and Victimisation Surveys The fact that crime surveys have been closely related to the State makes it worth discussing the rationale behind their model, the motivation behind their development, and why they have evolved into a reliable and policy-useful source of information. Referencing crime surveys’ design, Lee (2007) notes that it is based on two things. The first is the political will to tackle crime, as part of Lyndon Johnson’s Great Society programme, and the second is the concern about reliability and utility of crime statistics. In addition, the creation of crime victim research demanded new methods (2007: 62–63). This perspective views crime surveys as developing in parallel with the politics of crime control. In the case of Britain, the development of the original BCS was influenced by a political concern about rising crime rates and loss of confidence in police recorded statistics. This situation, among other factors, led to a shift in the Home Office Research and Planning Unit’s work programme towards situational prevention strategies. Before, most of the unit’s work had a clear focus on crime control strategies, promoting a rational choice approach to criminal offending. As Lee (2007) argues, this represented a change of perspectives, viewing crime in terms of situations rather than people’s dispositions. The approach rejected both the idea of an anthropological base for crime and of a (redistributive) motivation behind crime. It is also based on crime prevention strategies on control of the environment rather than of people. This change of strategies has its source in the concern raised by Wilson (1975) about the incapacity of the redistributive State to reduce crime in the post-war period. Although the expansion of social policy was explosive, crime rates in the long term steadily increased. Nevertheless, the number of people involved in crime was a small proportion of all the poor. Therefore, the argument that social conditions were an aetiological factor in crime could not be sustained. In this context, Wilson suggested increasing the risks associated with crime as a way to reduce it. At the centre of the crime survey’s original agenda, it is possible to recognise a vision of crime as a function of rewards and punishments. This agenda views criminals as rational actors, with the implicit idea that anyone could, given the appropriate incentives, engage in criminal activity. Thus, under a utilitarian approach, the reduction of crime, along with the risks associated with it, is not based on the control of dispositional factors (or aetiological features) of the offender. It is, however, based on a strategy of control of public space and an increase in awareness by possible victims. This vision of the criminal as homo economicus, mediated by incentives and restrains, has two theoretical perspectives. One side postulates that anyone, given the proper conditions, could be a criminal as opposed to the idea that specific groups are more likely to be criminals.7 The other side theorises that if anyone could be a 7 This

distinction is similar to Marx’s between formal and material equality. Formal equality was based on the idea of all people being members of a political community with equal political rights, but with differences in civil society, where their inequalities manifested in different levels of property rights.

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criminal, the possibility of being victimised is widespread. Thus, people must take appropriate measures to safeguard their individual security and be responsible for their own actions. As Lee notes, both criminal and victim become an “everyman” (2007: 104).8 Nonetheless, from a theoretical perspective, it may seem odd to argue that the original conception of crime surveys could have had this end in view, given one very basic fact: situational crime prevention strategies are focused on the criminal’s rationality, and not concerned with victims. Seen in this way, victims are part of the environment, and their actions could improve or discourage the will to commit illegal activities, in the same way as the actions of a police officer located in the same place. The idea of giving responsibility to victims could be part of the strategy of crime control, and as a side effect of the crime surveys agenda. As Lee (2007) argues, crime surveys create vulnerable groups. These are more likely to be victims, and therefore, they should take measures to reduce the possibility of being victimised. The author calls these groups fearing subjects, which were not present in the social landscape before crime surveys were implemented and their results analysed. Garland (2001) interpreted this phenomenon as the “normalization of crime”. This established the idea that crime was an everyday reality that should be considered as a feasible fact by common citizens. Even though the model of rational choice behind the original conception of crime surveys normalises crime, it embraces the liberal idea that, with a calculated assessment of risks, State action in public spaces to reduce incentives would allow ordinary citizens to exercise their liberty and develop their utilitarian pursuit of happiness. In these terms, it is not clear whether the creation of fearing subjects was planned, or an unexpected consequence of this crime control strategy. Nevertheless, the idea behind the original concept of crime surveys is that, with more information about crime targets and the circumstances in which crime takes place, it is possible to reduce the possibility of criminal activity. With this information, the State could intervene and inform people about ways to reduce crime, allowing them to make their own risk assessments. According to Wallerstein (1991), this is clearly a modernity project phenomenon, because it involves the idea that, with more information, people would be able to manage their life rationally and develop their potential in search of freedom and happiness. In fact, the idea of an increased individual freedom through the rational management of information is at the core of crime surveys. It entails freeing law-abiding citizens from the burden of crime, limiting both their risks and their temptations, but also involving them in the process through their assessment of individual risks. From this perspective, it is not surprising that crime surveys put special relevance on the crime’s type and location, and the victim’s features. Therefore, research on 8 According

to Garland’s (2001) account, the roots of the model of situational prevention could be seen as an early alternative to the penal-welfare state. In this sense, the situationist approach does not seem so different from the one proposed by Colquhoun in the eighteenth century. This sought to establish crime prevention through a wide social control network and recognised the police as an agency in charge of arrested criminals, but not directly involved with crime prevention. Although the historical context was very different, the two models appear similar (Garland 2001: 31–32).

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creating strategies to reduce crime is focused on issues such as the relation between victims and offenders (Hough 1987; Lauritsen and Laub 2007), patterns of repeat victimisation (Farrell 1992; Farrell and Pease 1993, 2001; Farrell et al. 1995) and environmental and population factors involved in criminal behaviour (Clarke 1980; Bottoms and Wiles 2002). These approaches were developed in two ways. First is through the control of space and environment management to reduce the probability of crime. This led to the development of situational prevention models (Clarke 1980; Hough 1987; Bottoms and Wiles 2002). Second is through the responsibilisation of specific social groups which were identified as being more at risk of victimisation (Lee 2007). These original strategies for managing crime led to a growing optimism about the role of crime surveys. This is exemplified in Van Dijk’s (1992: 140) assertion that the publication of national victimisation surveys has brought into focus the magnitude of several forms of conventional crimes, such as theft, burglary and vandalism. Since these types of crimes can be tackled by means of preventive strategies – both of a technical and social nature – the surveys have done much to promote crime prevention policies.

However, crime surveys also allowed academics to test assumed hypotheses about crime causes. For instance, it refutes the critical criminology suggestion of classbased crime, showing that most victims were in fact members of the working class. This undermined the idea of crime as a Robin Hood enterprise or some sort of anticapitalist-shaped behaviour. Lea and Young (1984, cited in Rock 2007: 24) were the most significant academics in developing this approach: [We believed that] property offences [were] directed solely against the bourgeoisie and that violence against the person [was] carried out by amateur Robin Hoods in the course of their righteous attempts to redistribute wealth. All of this [was], alas, untrue. Lea and Young (1984, cited in Rock 2007: 24)

Further academic debate took place on this issue during the 1970s (Rock 2007: 6–7). Therefore, crime surveys helped to develop a new study focus: real crime and real victims. These served to enrich police recorded crime information. However, in turn, new research problems were created. This related both to the social distribution of crime (which was not directly related to income) and to the understanding of crime causes (one of whose basic Marxist explanations, crime as a direct effect of capitalist exploitation, has shown no sound evidence). Moreover, crime surveys generate information for the policy-oriented branch of the criminological community and help to develop more sophisticated technologies for crime reduction.

4.4 Subjective Information and Crime Surveys The policy-oriented tradition of crime surveys is associated with the use of data for the design of crime control strategies. Another important feature in the development

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of crime surveys is crime social effects (i.e. the collection of data relating to subjective perceptions of crime). These two research goals of crime surveys (knowledge about crime control and the social effects of crime) are the starting point for the “fear of crime” debate.

4.4.1 The Invention of Fear of Crime Fear of crime as a concept has attracted multiple debates regarding its rational dimension, its measurement and its imprecise meaning (Lee 2007). The inclusion in crime surveys of attitudinal data regarding fear of crime was an added feature that came to enrich the kind of policies possible to be informed. As Van Dijk (1992: 141) indicates A second main purpose of national crime surveys [apart from the estimation of ‘actual crime amounts’ and/or reporting rates] is to gather information on the attitudes towards crime among members of the public. In most surveys questions are included about the perceived likelihood of victimisation by crime, and about the effective and behavioural aspects of such perceptions.

Lee (2007) identifies that the first examples of crime surveys (Ennis 1967; Biderman et al. 1967; Reiss 1967) included the analysis of public perceptions about crime (supposedly responding to concerns raised by polls and in political circles). Lee (2007: 66) suggests, if there is a ground zero, an epicentre to fear of crime as a social scientific concept, these surveys constitute it. They did not invent the discourse of fear of crime but they did give it form as an object.

Lee’s (2007) vision illuminates fear of crime’s epistemological status. This has been related to the capability of crime surveys to take account of it or to create it. In the case of the BCS, Hough (2007b) notes that the original motivation behind including fear of crime questions was to measure it in order to explain misperceptions that people could have about specific types of crime. It is important to highlight that this approach could bring political gains for the government and enable analysis of how perceptions could shape behaviour. Van Dijk (1992: 141) argues that Perceptions of crime, such as the perceived likelihood of a burglary, are important indicators of well-being in their own right. Even when such risk perceptions may be influenced by exaggerated media stories, they can be ‘real in their consequences’.

It could be argued that the fact that people makes decisions based on their perceptions is the basic justification for the incorporation of subjective information about fear of crime into crime surveys. In this sense, if fear of crime shape people’s behaviour, governments could identify the most fearful groups and design communication strategies to give them information about real victimisation, which could enable people to calculate their risks, and therefore feel safer. Therefore, understanding fear of crime could serve to reduce the threat to individual freedom posed by the misperception of risk.

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As Hough (2007b) notes, one of the arguments used to justify the implementation of the BCS was correcting public misperceptions of crime levels and risk, through the provision of more detailed information. For this reason, the analysis in the first sweeps of the BCS was focused on the “irrational” nature of fear of crime. This approach had its critics, such as left realists (Young 1986) and feminists (Stanko 1988) who argued that vulnerable people (especially women) avoided risk. Further analysis based on BCS data proposed that the differential worry perceived by various social groups could be explained in a rational way, as a rational risk assessment (see Hough 1995). Regarding fear of crime measurement, Skogan (1993) identified four ways to execute it. Three are related to cognition (concern, risk of victimisation and perceived threat of crime) and one to behavioural considerations. Moreover, questions related to fear of crime are usually given too much prominence in the BCS (Ditton et al. 1998; Farrall and Ditton 1999; Farrall et al. 1999), and that the supposed fearfulness of women in comparison with men is due to a gender factor that makes men try to appear less fearful (Sutton and Farrall 2005). Nonetheless, fear of crime remains a complex and undefined concept (Jackson et al. 2006). Regarding fear of crime’s imprecise meaning, Ditton et al. (1990) argued that fear of crime is only one of a number of perceived emotions regarding crime. They propose that other emotions, such as anger, are more frequently related to crime than fear and that several methodological improvements can be done to identify these emotions. Other authors propose that fear of crime, although conceptually is understood as a process, is based on everyday concrete events, which affect the individual reactions to it (Farrall 2004; Farrall et al. 2006). This debate has resurfaced the ambiguous definition of fear of crime as a problem in itself. Although this idea was abandoned after the left realist debate, it has recently resurfaced in a more sophisticated way. Fear of crime is an emotionally mediated concept, not completely rational and manageable by the individual, and therefore impossible to fully understand through crime surveys (Gabriel and Greve 2003; Farrall et al. 2006). Additionally, fear of crime is an indicator of social cohesion and decline in moral values (Jackson 2004). In this sense, emotional perspective of one’s fear of crime could enable predictions of people’s reactions towards it.9 In the second challenge, fear of crime is a representation of the general will, which is a Durkheimian perspective. Fear of crime causes is outside crime itself, seeing it in terms of the moral degradation of the community. This idea of fear of crime as a lightning rod for other social concerns has found evidence in the UK and other countries (Dammert and Malone 2003; Hollway and Jefferson 1997; Pantazis 2000; Bilsky and Wetzels 1994). A similar approach, more specifically related to crime, is the one developed by Innes (2004a). This views fear of crime as caused by crime signals that people interpret through deterioration in their surroundings (through anti-social behaviour,

9 The

classic example here is “don’t offer resistance to robbery”.

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impoverishment and poor hygiene). Innes (2004b) also develops an extension of his theory, to analyse the role of media in the transmission of these “crime signals”. Summarising, we have seen that the incorporation of questions related to perceptions about crime has led to several discussions of theoretical and methodological issues. These relate both to crime’s prevalence (event or state) and its origins (emotional, crime signals, rationalised risk assessment or general concerns about social life). However, they do not deal with the consequences of fear of crime on people’s behaviour. Thus, the challenges to the crime surveys agenda lie in the fact that fear of crime is representative of other sensibilities different from crime and does not dependent on it. In this context, it is possible to suggest that in the case of crime surveys the fear of crime dilemma is the concept manifests itself through other social variables different from crime.

4.5 The Critique of Critical Criminology and the Politics of Law and Order Crime surveys had as a primary objective giving a more accurate figure of crime, as well as providing information for the analysis of crime patterns, with a focus on the victim, instead of the offender. The focus on the victim brought the possibility of helping them overcome “misperceptions” about crime levels and served to provide information to rationally analyse risks and consequently choose the best options for avoiding crime and exercising their liberties. In this context, crime reduction and public information were automatically assumed to make people feel safer and happier. The arguments are very simple: if crime surveys focus on victims, crime environments and perceptions about crime, the focus of safety strategies should be based on these three pillars. This perspective on crime situations, and the neglect of the correctionalism that according to Garland (2001, 2002) was the basis of the penal-welfare state, raised questions in the academic community, specifically within so-called critical criminology. Now, crime was no longer conceived from specific subjects (and their motivations), but that a criminal could be everyman. In other words, there was a neglect of crime aetiology. This was motivated by Wilson’s (1975) approach. The author deems it impossible to reduce crime through social policy in the short term, proposing crime control strategies more focused on situations than on dispositions as a way to reduce crime. These concerns shaped the original development of the first crime surveys. One of the first criticisms of crime surveys concerned the amount of not included crimes. Sutton (2007) identified a disregard of white-collar crime research and other types of crime without victims. In fact, the crimes covered by the survey were labelled as the crimes committed by the “usual suspects”. Other criticisms were derived from a gender perspective. Within this perspective, large-scale surveys tend to neglect crimes against woman, such as sexual harassment

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or domestic violence, giving them impunity and furthering male domination (Stanko 1988). As Sutton (2007) affirms, many of these criticisms were only theoretical, without a methodological proposal to overcome the identified problems. These first attacks against the crime survey agenda led to a division among critics. As Brownlee (1998) notes, one section of the critical community, paradigmatically characterised by Young, turned on the other and argued for the need to consider crime as a real problem for the working class. This was the origin of left realism. In this sense, crime surveys played an important role in the development of left realism. They were the basis for demonstrating the existence of intra-class victimisation, and thus rejecting the idea of the idealised criminal, or Robin Hood (Rock 2007: 66–67). This concern about crime, in addition to the argument that crime more greatly affects the poor, ethnic minorities and women (the most discriminated), gave rise to the idea that crime reduction was not only a conservative project, but also a component of a socialist one. Furthermore, there was a moral commitment to end crime here and now (Brownlee 1998: 319). This leads to an increasing participation of criminologists on the political debate in the UK. This shift on part of the critical criminology community had a large effect both on policy and on the crime surveys agenda. Many of the arguments of the left realists were partially adopted by the centre-left coalition of the New Labour, with crime control issues increasingly incorporated into the parties’ political agenda. Thus, left realism allowed a more equal political competition between New Labour and the Conservatives, based on the idea of crime control. Left realism gave New Labour an electoral advantage, acknowledging the influence of individual will, or personal morality, to explain criminal behaviour, while at simultaneously maintaining a critical and socially compromised posture.10 In other words, if people were forced to behave in unlawful ways because of their circumstances, people were deciding to become criminals. Thus, the return of the actor meant, in the case of left realism, an opportunity to criminalise. Left realists, although critical of crime surveys, made use of them and promoted local surveys in response to BCS deficiencies. Some of the criticism surrounding it was methodological, for example the impossibility of analysing crimes affecting marginalised groups due to questionnaire issues or sampling matters (e.g. the difficulty of researching the homeless and other floating populations). Also, another part of left realists and feminists argued that assaults on women, for example, were usually committed by someone close to them, and that it was unlikely that these 10 Brownlee

(1998) notes the similarity between the moral claim of responsibilisation of offenders by left realists and those of neoconservative theorists such as James Q. Wilson (who served as inspiration for the development of crime surveys) and Charles Murray. Zedner (2002: 356) notes parallels with the model of restorative justice, remarking that “…the emergence of restorative justice is a potentially powerful rival to more punitive orthodoxies, perhaps even a rebirth of rehabilitative impulses in a new guise. Where rehabilitation rendered the offender the subject of psychosocial intervention, restorative justice sets the offender as the author of his own readmission to civil society. Entirely in accordance with the emphasis on personal responsibility and individual rationality so central to neoliberal philosophy, restorative justice may be plausibly seen as an attempt to revive rehabilitation for a new political era”.

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could be captured in the surveys. Another concern was raised about experiences that legally could not, at that time, be categorised as a crime, such as sexual or racial harassment (Bowling 1993). The best-known local survey is the Islington Crime Survey (Jones et al. 1986). Although not very different technically from the BCS, it raised concerns about the distinction of victimisation within groups. Some of the results indicated that analysis at a lower level (i.e. with samples representative of smaller populations) could display a richer picture of crime and its meanings.11 In other words, the dynamics of crime, at this lower level, were more complex than the ones shown at a national level by the BCS. It also demonstrated that crime analysis should involve a cultural dimension. As Young observes, there was a need to start “from the actual subgroups in which the people live their lives” (Young 1988, cited in Maguire 2007: 277).12 Likewise, Hough (2007b) argues that one of the challenges for national crime surveys is the rise of a localist agenda, which grants more relevance to returning to local levels. This could mean an enlargement of the sample, in order to give estimations of these local areas in terms of crime support management. Even if this agenda leads to the delegation of crime control to county or municipality level, Hough (2007b) argues the necessity national crime surveys. In this sense, this book argues that the agenda of local surveys does not represent a problem or threat to crime survey’s original aim. The need for lower level statistical representation can be easily undertaken by national crime surveys. In Chile, it is not unusual for “communes” (the basic political-administrative divisions of the country) to request representative results and pay separately for them. In some cases, specifically designed follow-up questionnaires are also added at the end of national surveys to obtain more information at local level.13 Fundamentally, the crime surveys agenda and the left realists’ local surveys share the same principles: concern about crime is rational, and actors can calculate their risks.14 This is mainly derived from the idea that no one should be labelled as a delinquent (because aetiological definitions are not sustainable15 ). It also originates from the focus on a rational victim, whose concerns about crime supposedly reflect reality about crime. In simple terms, the claim of left realists about culture and the

11 More sampling power means more definite impressions of society, also the possibility to perform clearer analysis for specific territories. 12 This is currently being developed by Young and his colleagues through the approach of cultural criminology. It is based on the understanding of the cultural dimensions of crime and their variations. For instance, the cultural meaning of a punch is not the same for a young man as for an older woman (Hayward and Young 2007). 13 In selected communes during the last quarter of 2006, a continuing education follow-up questionnaire was added at the end of the regular labour force survey. 14 Although the first sweeps of the BCS showed fear of crime as irrational, long trend analysis incorporated the idea of rationality into the crime surveys agenda. Left realism always acknowledges rationality of fear of crime as a reflection of perceived risks and insecurities. 15 This does not apply in formulations which assume the idea of an original sin, prior to the aetiological definition, as in the case of Marxist theory and the concept of primitive accumulation.

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importance of the local environment for crime analysis does not contradict the initial conception of national crime surveys. Similarly, Rock states (2007: 67) that it is difficult to distinguish between the agenda of the Home Office’s administrative criminologists and the policy work derived from left realist analysts, who ended up applying situational strategies to reduce crime. Consequently, Home Office and left realists tackling crime strategies were related to situational prevention, or ways to reduce opportunity for crime in public places. This was achieved through architectural design, strategic positioning of police officers, implementation of technologies that served as a deterrent to possible criminals (such as CCTV or alarms), and distribution of information about crime risks to the population. However, crime surveys were used as a base for the analysis of victimisation and fear of crime, and also as a way of assessing performance of the criminal justice system and monitoring public attitudes towards it. The next section examines this further.

4.6 Subjective Information as a Managerial Tool: The Search for Public Opinion The agenda of crime surveys has focused on crime control strategies. At first, crime surveys were a way of assessing police work. Nevertheless, due to the processes of State reform involving managerial systems similar to those of private management, crime surveys started to collect public opinion about criminal justice and punishment.

4.6.1 Analysis of the Police—Are We Doing Well? One of the first uses of crime surveys (even prior to the BCS) was to assess police work. The first important survey regarding public perceptions of the police was the “People and Police for London” (PPL) study (Henry and Smith 2007). One of the important topics that arose was the changing relation between the police and society (Hough 2007a; Smith 2007). Crime surveys actually have become the principal way of assessing this relationship. In this regard, the analysis of long-term trends enabled the assessment of relationship variations between the police and the community. From a perspective of crime reduction based on a rational actor, confidence in justice was seen as related to an increased effectiveness of crime control strategies, measured by lower victimisation. Thus, the expected results were that increased police efficiency should make people feel more confident in the police work and, therefore, safer. Long-term trends of the BCS, and a replica study of the original PPL (FitzGerald et al. 2002), show that the decline in crime rates in London during the 1990s did

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not automatically lead to an increase in public satisfaction with the police.16 This raised important questions about police work, suggesting that the classic model of crime reduction did not alter public perceptions and thus did not affect institutional legitimacy. At the same time across the Atlantic, legitimacy issues were developed, specifically by social psychologists that focused on the dynamics of authority as a way to understand the process of compliance with law. Tyler and his colleagues developed a convincing approach to the relationship between citizens, authority and law. One of the most important conclusions was that deterrence-based strategies, such as rational choice-based ones, show a long-term inability to secure compliance with law (Tyler 2006; Tyler and Huo 2002; Hough 2007a). Moreover, some methodological issues have also surfaced around the capacity of crime surveys to assess police performance. In this sense, Skogan (2007) argues that good public opinion is not the same as good policing. The author shows that the general public does not assess the police in the same way experts do; crime surveys should take this into consideration. This is not a simple issue, given that the Home Office is currently using the BCS to analyse and assess performance targets. According to Hough (2007b), the original BCS has altered from a research-driven flexible tool to develop criminal policy, into a juggernaut mainly concerned with administrative procedures. Therefore, the debate about crime surveys and police assessment involves both policy and conceptual issues that could have important consequences for the crime surveys agenda.

4.6.2 The Analysis of Attitudes to Punishment: Are We Giving the People What They Want? Another issue researched since BCS’ origin has been the opinion about offenders’ punishment, specifically the consistency between public opinion and actual court practices. The political context surrounding the survey has frequently referred to the will of the people for more punishment and criticisms of the courts for being too lenient. Early BCS sweeps found that the opinion of people was mainly in line with courts’ practices, suggesting that people’s perceptions about leniency were inaccurate (Hough and Roberts 2007). Public opinion results had little impact during the 1980s. During this time, the government approach was to monitor the opinion of the public, but not considering when creating its political agenda (Hough and Roberts 2007). This situation changed in the 1990s. Hough and Roberts (2007) expanded on Giddens (1991) to assert that, with the radicalisation of modernity and the consequential decline of trust in expert systems, public opinion became a much more powerful driver for policy design. This stemmed from the introduction of the New 16 The

original concern to include questions about police perceptions was related to monitoring of performance and was not theory driven.

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Public Management modernising strategy in Britain, which viewed citizens as consumers. By the mid-1990s, public opinion was receiving increasing attention from both academics and policy makers. In fact, by 1996, a complete module on public opinion was included in the BCS. According to the module’s results, although most people thought judges are too lenient, when asked to sentence in a hypothetical scenario, most of the time they were broadly in line with the courts’ practice. Also, results showed that the public failed to perceive variations in crime trends, believing that there had been ever rising crime, even though, from the mid-1990s, rates were declining (Hough and Roberts 2007). Regarding these findings, Hough and Roberts (2007) suggest three reasons why concern about crime appears to be static while victimisation rates fall: • Insecurities about crime reflect broader uncertainties about life in late modernity. From this perspective, crime acts as an umbrella for other social concerns, in a social and natural environment less possible to be controlled by social actors (Giddens 1991; Beck 1992). This viewpoint has been extensively developed by Garland (2001). • People react to signs of crime, which can be found in social disorder and antisocial behaviour. This is a neo-Durkheimian approach, dealing with the idea of moral degradation. In other words, the perception of higher crime rates is based on low-level norm breaking, which is interpreted as a signal of the occurrence crime in an area (Innes 2004). Hough (2007b) notes that this approach is the base of the reassurance programme of crime reduction. Similarly, Jackson (2004) revealed that people from a rural British setting were likely to associate crime and incivilities with a deterioration of moral values. • People may simply be responding to explicit or implicit messages about crime and social order that are conveyed by politicians and the media (Reiner 2007). Regarding the consequences of public opinion, Morgan (2000) notes that it does affect judges. This could have an impact on their sentencing behaviour if they responded to tabloid coverage or other types of quick and dirty public opinion polls. Moreover, developments in the field of public opinion, and its incorporation as a separate topic in the BCS, have also furthered its integration into policy design, including Public Services Agreements. In summary, crime surveys have been increasingly involved relevant in the incorporation of public opinion into policy assessment. However, as Hough and Roberts (2007) note, this has been done without a clear coherence between the theories behind the concepts—an important issue in the case of confidence in justice. Therefore, the original crime survey agenda (based on a rational actor) has an unclear position. Information availability rather than a reliance of people on their own rational risk assessment has increased political demand (and willingness) to be tough on crime, creating a situation characterised by Roberts et al. (2003) as penal populism.17 17 Penal

populism is defined as “the pursuit of a set of penal policies to win votes rather than to reduce crime rates or to promote justice” (Roberts et al. 2003: 5).

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4.7 Conclusions: The Limits of the Homo Economicus in Criminal Policy Crime survey development has led to a reappraisal of its original conceptual base and of the initial strategy of crime control. Thus, the challenges faced by rational actor-based crime control strategies are developed by three different sources, each representing a different level of risk to the original crime surveys agenda: The Critical Criminology approach It proposes to develop the classical model through the incorporation of more crimes and to move towards the identification of seductions of crime18 (Sutton 2007). This approach does not constitute a serious problem for the original conception of crime surveys, as it is focused more on technical constraints than conceptual issues. The Reconceptualisation of Fear of Crime This constituted the first serious challenge to the original crime surveys’ agenda. Although, if fear of crime cannot be explained solely by its relationship with victimisation-related variables (plus demographics), it falls out of reach of criminological boundaries, lying in the domain of sociology or psychology. This shows large-scale surveys’ limitations in providing useful information to assess the role of fear. Now, considering that the aetiological sources of fear of crime are complex and require multidisciplinary research and considerable time to analyse, it may be more sensible to analyse their behavioural dimension. The Citizen-consumers This constitutes the strongest challenge to the original crime surveys agenda. The shift of citizens from beneficiaries to customers prompted by New Public Management involves not only the development of a good service, but it also implies the ability to retain the client. In this context, people’s opinions and behaviour towards criminal justice agencies are relevant for their efficiency and the rule of law. The State’s promotion of voluntary and active compliance is essential for managing an active social control based on compliance, and as a way of maintaining its institutional legitimacy. Thus, the role of the public as consumers, and the duty to offer them a “good service”, involves new requirements of information in order to fulfil their desires in the area of law. Toharia (2003) notes three reasons to demonstrate the relevance of public evaluation of the law: (1) all institutions that exercise power or authority must account for the use they make of it; (2) in the framework of late modern States, there is a widespread perception that courts are public institutions, funded with public money, and doing a public service. Public funds are scarce and justice cannot be pursued at any cost; therefore, justice must be cost-efficient, and finally, (3) courts are service 18 The

idea of “seductions of crime” is based on Katz (1988). The author proposes that the causes of crime should not be derived from the individuals’ socio-economic features, but instead should be focused on the motivations of the offender and in the understanding of how crime can become an attractive activity for him.

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organisations; therefore, they should be focused on consumers’ needs. In this sense, courts for a long time have been openly focused on the activities of regulars (judges, court clerks and lawyers) and not on what people require. This means the need to refocus the work of courts towards increasing access (Toharia 2003: 22). In summary, there is one dilemma and one proposal. First, the dilemma is related to maximising the effectiveness of deterrence-based strategies. Although part of the strength and attractiveness of Tyler’s works (Tyler 2006; Tyler et al. 1997; Tyler and Huo 2002) is the clear focus on policy design, it is unclear how changes could be managed and assessed. Tyler argues that everyday interaction with the police would improve people’s perception that they work with fairness and, as a consequence, boost their compliance with authority and trust in law. In this way, incorporating fair procedures into police contact with people would generate more trust. However, Smith (2007), based on Skogan (2006), questions this idea, noting an asymmetry between good and bad contacts with the police. While unsatisfactory interactions lead to poor perceptions about police, satisfactory encounters do not lead to positive perceptions. The author notes that to regain public confidence in the police, it is necessary to apply a top-down model. This model is based on the idea of a meta-narrative (linking the police and the public), which could be reflected in police encounters. Interaction, argues Smith (2007), does not create faith, but helps to maintain it. The need of research on compliance with the law as a way of advancing crime control seems clear. To succeed, this should be executed side by side with deterrencebased strategies. While crime control agendas normally overlap, and preference are given to those with a short-term crime reduction focus. This turns the dilemma into a challenge. A possible answer to these challenges requires considering the differential status of subjective information. For example, fear of crime is taken as a reliable indicator of how people shape their behaviour depending on their fear. A compliancebased agenda for crime surveys should necessarily analyse trust and confidence as a behaviour-shaping perspective. In this respect, Sunshine and Tyler (2003: 159) make a clear distinction between behaviour and attitudes. Behaviour is constrained by several environmental factors other than a person’s will. Attitudes reflect a person’s view about specific issues, based on their values. The authors state that “behaviours would be predicted less strongly by attitudes than are other attitudes”, meaning that we need to identify those variables more prone to incite behaviours. In this sense, fear of crime is a behaviour-shaping variable and trust in law is an attitudinal and belief variable.19 This epistemic difference lies behind the analysis in this book, which will maintain this differential status both for analytic and practical purposes. This approach presupposes a connection between attitudes and behaviours. Although attitudes are important, the classic objective of sociology is “the interpretative understanding of social action and thereby … a causal explanation of its 19 “But

It’s Just Perceptions!”, as Skogan (2006) graphically notes.

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course and consequences” (Weber 1978: 4).20 In other words, the main concern is the interpretation of behaviour and its attached meaning. In this way, to keep being the core tool of the criminological discipline, crime surveys need the operationalisation of trust as a behaviour-related variable. This proposal does not constitute an attempt to impose the idea of trust as a source of wisdom. It is a call to rethink the status of our basic concepts to maximise the benefits of crime control strategies. The path of innovation, empirical validation and assessment, and scientific proactivity in the treatment of policy-oriented issues seems to be better than to simply blaming policy makers and politicians for their reduced scope. As Skogan (2007: 170) notes, Underlying all of these specific concerns is a larger one, that the legitimacy of including public opinion on the list of official statistical performance indicators will be enhanced by directly addressing them proactively, rather than waiting for their inevitable appearance in the political realm.

References Beck, U. 1992. Risk Society: Towards a New Modernity. London: Sage. Biderman, A. D., L. A. Johnson, J. McIntyre, and A. Weir. 1967. Field Survey I: Report on a Pilot Study in the District of Columbia on Victimization and Attitudes Toward Law Enforcement. President’s Commission on Law Enforcement and Administration of Justice Field Survey I. US Government Printing Office, Washington, DC. Bilsky, W., and P. Wetzels. 1994. Wellbeing, feelings of personal safety, and fear of crime: Towards a conceptual integration. Working Paper No. 29. Kriminologisches Forschunginstitut Niedersachsen e.V. (KFN), Hannover: KFN. Bottoms, A., and P. Wiles. 2002. Environmental criminology. In The Oxford Handbook of Criminology, 3rd ed, 620–656. Oxford: Oxford University Press. Bowling, B. 1993. Racial harassment and the process of victimization: Conceptual and methodological implications for the local crime survey. British Journal of Criminology 33: 231–250. Brownlee, I. 1998. New Labour—New penology? Punitive rhetoric and the limits of managerialism in criminal justice policy. Journal of Law and Society 25 (3): 313–335. Clarke, R. 1980. Situational crime prevention: Theory and practice. British Journal of Criminology 20 (2): 136–147. Cornish, D., and R. Clarke. (eds.). 1986. The Reasoning Criminal: Rational Choice Perspectives on Offending. New York: Springer. Dammert, L., and M.F.T. Malone. 2003. Fear of crime or fear of life? Public insecurities in Chile. Bulletin of Latin American Research 22: 79–101. Ditton, J., S. Farrall, J. Bannister, E. Gilchrist, and K. Pease. 1990. Reactions to victimisation: Why has anger been ignored? Crime Prevention and Community Safety 11: 37–54. Ditton, J., S. Farrall, J. Bannister, and E. Gilchrist. 1998. Measuring fear of crime. Criminal Justice Matters 31: 10–12. 20 Weber

(1978: 4) also notes: “We shall speak of action insofar as the acting individual attaches a subjective meaning to his behavior—be it overt or covert, omission or acquiescence. Action is ‘social’ insofar as its subjective meaning takes account of the behavior of others and is thereby oriented in its course”.

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Downes, D., and R. Morgan. 2007. No turning back: The politics of law and order into the millennium. In The Oxford Handbook of Criminology, 4th ed, 201–240. Oxford: Oxford University Press. Ennis, P. 1967. Criminal Victimization in the United States: A Report of a National Survey. Washington, DC: Government Printing Office. Farrall, S. 2004. Can we believe our eyes? A response to mike Hough. International Journal of Social Research Methodology 7: 177–179. Farrall, S., and J. Ditton. 1999. Improving the measurement of attitudinal responses: An example from a crime survey. International Journal of Social Science Methodology 2: 55–68. Farrall, S., J. Bannister, J. Ditton, and E. Gilchrist. 1999. Questioning the measurement of the fear of crime. British Journal of Criminology 37: 657–678. Farrall, S., J. Jackson, and E. Gray. 2006. Everyday emotions and the fear of crime: Preliminary findings from ‘Experience & Expression’, experience & expression in the fear of crime. Working Paper No. 1. ESRC Grant RES 000 23 1108. Farrell, G. 1992. Multiple victimisation: Its extent and significance. International Review of Victimology 2: 85–102. Farrell, G., and K. Pease. 1993. Once bitten, twice bitten: Repeat victimization and its implications for crime prevention. Police Research Group, Crime Prevention Unit Paper 46. London: Home Office. Farrell, G., and K. Pease. (eds.). 2001. Why repeat victimization matters. In Repeat victimization, crime prevention studies, vol.12. NY: Criminal Justice Press. Farrell, G., C. Phillips, and K. Pease. 1995. Like taking candy: Why does repeat victimization occur? British Journal of Criminology 35 (3): 384. Farrington D., and E.A. Dowds. 1985. Disentangling criminal behaviour and police reaction. In Reaction to crime: The public, the police, courts and prisons, eds. D. Farrington, and J. Gunn. Chichester: John Wiley. FitzGerald, M., M. Hough, I. Joseph, and T. Qureshi. 2002. Policing for London. Cullompton: Willan. Gabriel, U., and W. Greve. 2003. The psychology of fear of crime: Conceptual and methodological perspectives. British Journal of Criminology 43: 600–614. Garland, D. 2001. Punishment and Control. Oxford: Oxford University Press. Garland, D. 2002. Of crimes and criminals. In The Oxford Handbook of Criminology, 3rd ed, eds. M. Maguire, R. Morgan, and R. Reiner. Oxford: Oxford University Press. Giddens, A. 1991. The Consequences of Modernity. Cambridge: Polity Press. Hayward, K., and J. Young. 2007. Cultural criminology. In The Oxford Handbook of Criminology, 4th ed., eds. M. Maguire, R. Morgan, and R. Reiner, Oxford: Oxford University Press. Henry, A., and D. Smith (eds.). 2007. Transformations of Policing. Aldershot: Ashgate. Hollway, W., and T. Jefferson. 1997. The risk society in an age of anxiety: Situating fear of crime. The British Journal of Sociology 48 (2): 266. Hope, T. 2005. Pretend it doesn’t work: The ‘Anti-Social’ bias in the Maryland scientific methods scale. European Journal on Criminal Policy and Research 11: 275. https://doi.org/10.1007/ s10610-005-9000-1. Hough, M. 1987. Offenders’ choice of target: Findings from victim surveys. Journal of Quantitative Criminology 3 (4): 355–369. Hough, M. 1995. Anxiety about Crime: Findings from the 1994 British Crime Survey. Home Office Research Study No. 147. London: Home Office. Hough, M. 2007a. Policing London, 20 years on. In Transformations of policing, eds. A. Henry, and D. Smith, 191–212. Hampshire: Ashgate. Hough, M. 2007b. Research on victimisation and insecurity in Britain. National Report for CRIMPREV presented at the seminar on crime prevention and social integration policies. Barcelona, 19th and 20th April 2007.

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Sutton, M. 2007. Improving national crime surveys: With a focus upon strangely neglected offenders and their offences, including frauds, hi-tech crimes and handling stolen goods. In Surveying Crime in the 21st Century, eds. M. Hough, and M. Maxwell. Cullompton: Willan. Sutton, R., and S. Farrall. 2005. Gender, socially desirable responding and the fear of crime: Are women really more anxious about crime? British Journal of Criminology 45 (2): 212–224. Toharia, J. 2003. Evaluating systems of justice through public opinion: Why, what, who, how, and what for? In Beyond Common Knowledge, eds. E. Jensen, and T. Heller, 21–62. Stanford: Stanford University Press. Tyler, T.R. 2006. Why people obey the law. Princeton: Princeton University Press. Tyler, T.R., R. Boeckmann, H. Smith, and Y. Huo. 1997. Social justice in a diverse society. Boulder: Westview. Tyler, T.R., and Y. Huo. 2002. Trust in the Law: Encouraging Public Cooperation with the Police and Courts. New York: Russell Sage Foundation. Van Dijk, J. 1992. On the uses of local, national and international crime surveys. In International Trends in Crime: East Meets West, eds. H. Strang, and J. Vernon, 137–151. Wallerstein, I. 1991. Unthinking Social Science: The Limits of Nineteenth Century Paradigms. Cambridge: Polity Press. Weber, M. 1978. Economy and society, vol. I. Berkeley: University of California Press. Wilson, J. 1975. Thinking About Crime. New York: Random House. Young, J. 1986. The failure of criminology: The need for radical realism. In Confronting Crime, eds. R. Matthews, and J. Young. London: Sage. Zedner, L. 2002. Danger of dystopias in penal theory. Oxford Journal of Legal Studies 22 (2): 341–366.

Chapter 5

The Assessment of a Judicial Reform Through Public Opinion: Theoretical and Methodological Issues

5.1 Trust in Law and Confidence in Justice Previous chapters have set the research in context and discussed the main strengths and limitations of crime surveys for the analysis of large-scale judicial reform from an informational basis perspective. However, in order to use crime surveys’ information for the analysis of judicial reform, it is necessary to describe some concepts. There are several concepts that could be used to address the same phenomenon (changes in the relationship between the Criminal Justice System and the people), including legitimacy and confidence in justice. What are their differences and how do they form a coherent body of knowledge? While legitimacy is a well-discussed concept, confidence in justice and trust in law are more problematic in terms of their limited theoretical development.

5.2 The Meaning of Trust Trust is a concept as old as political philosophy itself. An early version of the trust concept appears in Socrates’ discussion with Glaucon in Plato’s The Republic (2003), as part of the qualities of the philosopher’s just soul. In Socrates’ dialogue, the philosopher’s search for knowledge is also the search for justice and welfare, which allows him to take the best decisions for the good of society. Moreover, in the Socratic approach, the State is composed of three elements, each one mutually exclusive and corresponding to parts of the soul: philosophers, as representation of reason (who must govern and create the law); soldiers, as representation of spirit (who support the philosophers and are in charge of enacting the law); and the rest of the population, as representation of desire (in charge of obeying the law to control themselves). In the Socratic State, trust is vertical, emanating from the population towards the philosophers and the laws established by them and from the philosophers back to their underlings (so that they will act upon the laws created). This means that the just © Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_5

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action of the philosophers and the warriors’ enforcement makes possible the respect of the law and therefore a peaceful social life. Furthermore, trust, in Socrates’ conception, is entwined with knowledge. Those who are knowledgeable are worthy of trust, as their search for knowledge is also a search for good. Trust is ultimately the delegation of power from the dominated to the rulers, with the idea that they will do the best for all. Subsequently, Baier (1986) reveals that the topic of trust is also present in the writings of Christian authors such as Saint Thomas Aquinas, who explicitly addresses trust in God as part of the virtues of faith. In the same way, authors such as Machiavelli (2011) and Hobbes (1982) put trust (or its opposite, distrust) at the core of their political theories. Along with Glaucon from the Platonic dialogue, Machiavelli and Hobbes believe that people will, if they are not fearful of punishment, engage in competition and treason or, as in the Hobbesian perspective, in a war of man against man. Even though Glaucon, Machiavelli and Hobbes have different approaches (the idea of comprehension of the good; contention and maintenance of power; and the notion of a world without rules and the true nature of man, respectively), they reach the same conclusion: without rules, man will find himself fighting to survive. Therefore, someone or something must create and enact rules that can be respected by all (or most) people in order to live a peaceful life. This concern leads to the question of trust in government and, moreover, the specific question of the role of justice administration in the modern State. If we need rules, and a group of people to enact them in order to avoid the state of nature (as defined by Hobbes 1982), we also need to control those who enact the rules to avoid tyranny. In Socrates’ theory, this control was carried out by the rulers themselves. Their search for knowledge made them identify as good and thus their decisions would always be appropriate. In the case of Machiavelli, tyranny was not a problem. The main concern for the ruler would be to maintain his power and to control his subjects (by consent) and enemies (by fear or coercion). To achieve this, he could use whatever means he considered reasonable, if the dominated consent. Hobbes deals with the issue in a different way: The risks of the exercise of power should be kept to a minimum; therefore, there should be only one absolute sovereign. The simple act of appointing the sovereign is a vote of trust. Another approach is held by contractualist thinkers such as Locke (1997). Locke proposes the need for constitutional agreements to limit the sovereign’s powers to avoid the risk of tyranny. Moreover, Hume (1985) focuses on the relationship between the sovereign and its subjects. Whereas for Hobbes and Locke the basic reason for sovereign’s existence is to avoid the state of nature, for Hume it is to facilitate cooperation between men for mutual gain. In this view, trust already exists in people and therefore needs to be protected from deception. Another view of trust is found in normative approaches. Kant (2007) proposes a system in which human action is ruled by moral imperatives. If people behave according to moral principles, trust is possible. For Kant, trust is the basis for respect and solidarity, which will make knowledge possible from each other. Similarly, Marx

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and Engels (2002) suggest that applying this worldview in working relations makes trust and solidarity possible for the members of a given class. Therefore, for political philosophy the question of trust is related to the act of allowing someone or something to take care of integrity by establishing certain rules at the cost of limiting capacities for action. The concern for political philosophers is: what are the roles and responsibilities of the trusted in the maintenance of trust? For some authors, this is to exercise power (Socrates, Machiavelli, Hobbes), for others (Locke, Hume) it is to coordinate and guarantee the exercise of everyone’s liberties. Baier proposes that trust is “letting other people take care of something the truster cares about, where such ‘caring for’ involves some exercise of discretionary power” (1986: 240). Following the author’s assertion, in the case of justice, trust constitutes allowing an institution (justice administration) to take care of the establishment and control of social order (i.e. of defining social conflicts and developing a way to avoid or punish them). This means that the justice administration can exercise discretionary powers, such as the use of force, incarceration or ostracism. Also attached to trust is an expectation that justice administration will not make changes or take advantage when applying sanctions or force.

5.3 Between Trust and Confidence Trust is the transference of rights from one person to another and the expectation of fair use and protection of the trusted goods. Trust in justice involves the delegation of the right to define and protect social order to a specific person or institution with the expectation of fairness. Now, trust will be analysed along another key concept in the analysis of justice: confidence. Tonkiss and Passey (1999: 258) define trust as pertaining to ethical relations, which are not conditioned by an external framework of controls and confidence as referring to relations that are secured by contract or other regulatory forms. This distinction is important for the analysis of justice. If trust and confidence differ in terms of their formality, then the analysis of confidence could be the analysis of the law’s implementation. Trust refers to the social attitudes relating to this implementation. Confidence is related to how the justice administration works, how it defines and enforces the law, and the recognition that people have of its functioning. However, trust is also related to how people recognise the administration of justice as being aligned with their interests and worldview. This alignment between trust and worldviews has been part of sociological literature since its inception, through the concept of collective consciousness (Durkheim 1997). This refers to the shared beliefs and moral attitudes that constitute the identity of a human community. It is different from individual consciousness and is capable of constraining it. Until now, trust and confidence have been used mainly to address the same kind of concern. The main concept of trust in law has been associated with Tyler and procedural justice theorists (Tyler 1989; Tyler and Huo 2002). However, the concept

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of confidence in justice has not been widespread, although some (Hough and Roberts 2004b) have used it specifically to measure attitudes towards criminal justice system institutions and crime-associated information (such as the preparedness to report) from crime survey data. Summarising, confidence is related to the work of the law, and its predictability and capacity for enforcement, while trust relates primarily to the alignment between justice administration and social norms. Essentially, how the justice system represents the shared beliefs and morality of the group it controls.

5.4 Legitimacy While the concepts are closely related, confidence, trust and legitimacy are not the same, especially when examined from an institutional perspective. In philosophical terms, trust involves giving another person or institution the right to exercise discretionary powers to protect something valuable (Baier 1986). The distinction proposed by Tonkiss and Passey (1999) states that confidence is backed by an institutional formal agreement (law or some kind of contractual relationship), which can be objectively assessed, while trust has no formal backup. Finally, legitimacy deals with how trust is achieved in the framework of an unequal relationship to maintain social stability. From a Weberian perspective, legitimacy involves a multilevel process. Trust can be achieved both at individual and group level, with the group creating a valid social order capable of commanding trust. In the case of the justice system, Toharia notes that overall legitimacy originates within the political system to which it belongs (2003: 26). In other words, the problems of distributive justice and authority cannot be separated from their operation.

5.5 The Temporal Dimension of Trust Institutional trust represents an expectation of compliance with shared values. It is related to the expectation of the efficient function of a system and it involves an individual and group process. Next, the availability of trust in change is going to be analysed If trust were an ever-changing entity then its study would be worthless. Equally, if it were extremely stable, its study could only be undertaken using historical analysis. The French historian Fernand Braudel identified four types of analysis in history and social sciences: (1) analysis of phenomena that are always changing, which is defined as dust history; (2) analysis of short-term structures (one-to-ten years), which is defined as conjuncture; (3) analysis of long-term structures (ten-to-50 years), which is labelled as longue durée; and (4) analysis of the eternal structures, which is defined as the très longue durée (Braudel 1960). The task is to consider which approach is the most appropriate to analyse trust.

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Classical sociology has highlighted the value of trust for the analysis of social change. For Durkheim (1997), deviance, understood as the attitudes and behaviours distinct from the social norm, represented a motor of social change. He analyses how changes in the configuration of work led to changes in the configuration of social solidarity, shifting from a model of trust based on equality to one based on differentiation and complementarities. For Marx and Engels (2011), technological change is the motor of history, and changes in labour have a correlation in social relations. For Weber (1978), the key driver of change is how people interpret their world; he identifies emotion as one of the main drivers of change. The author also identifies three sources of authority: rationality, tradition and charisma. While the first two are stable, charisma, or the belief in the sanctity of authority, is essentially an unstable and disruptive phenomenon. Trust (in the procedure, the tradition or the leader) is at the base of these modes of authority. Other authors have stressed the role of technological change in trust formation. Giddens (1991) highlights how advances in technology and social organisation influence the formation of individual consciousness. These processes have meant the loss of confidence in expert systems and an increasing need for identity affirmation, which has turned into consumerism. The same perspective highlights the role of individualisation and how it has led to a more homogenous experience through the need to reaffirm identities (and therefore accepted ways of life, or norms) via consumption (Bauman 1991). Trust has different temporal dimensions. It can be analysed in terms of a long-term process, looking at change across historical eras (from trust in the sovereign to trust in the methods of liberal democracy), or as a short-term process (looking at change in political projects in free elections). Both temporal dimensions could give a clearer understanding of how trust in groups changes. Toharia (2003) suggests that trust is gained through symbolic reinaugurations. He proposes that a major political change (e.g. the inauguration of a democratic regime) would be a sign of symbolic reinauguration of the courts. Strictly speaking, it would allow the courts to reclaim the credit they may have lost as a consequence of their connection to the now abolished non-democratic regime. The author suggests that symbolic reinaugurations rarely take place automatically, but instead are a specific kind of policy performed by the judiciary. They can materialise in a symbolic judicial decision, changes in the law or organisational redesigns (2003: 26–27). In this sense, Chilean judicial reform can be seen as a symbolic reinauguration. Tiede (2004) presents some evidence regarding the role that transformation of low-level courts could have had for the prosecution of high-level military officers for human rights violations, marking a symbolic reinauguration. Specifically, for the case of Chile, the author argues that the prosecution and sentencing of high-level officers from the Pinochet regime served as a sign of equality before the law. The judiciary is more likely to be recognised as fair because of the political support for the judges who prosecuted these cases and were subsequently promoted to higher courts.

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For trust in law, it is necessary to assess changes in group attitudes (the rationale for this is based on the role of groups in Weberian theory), and trust in the criminal justice system. This leaves some unresolved issues regarding the assessment of trust changes.

5.6 Opinions, Attitudes and Behaviours: What Is Trust? One of the main discussions in social sciences is the link between attitudes and behaviours. Schuman and Johnson (1976) noted the challenges that behaviour prediction posed for attitudinal research. The authors concluded that, even though attitudes and behaviours sometimes overlap, and the former can predict the latter, attitudes do not necessarily correspond with behaviour. In this sense, attitudinal research can enrich or put in context-specific behaviours (for instance, explaining differential behaviour among different social groups under given stimuli). This feature is of particular importance in the case of attitudes towards institutions, such as trust, and especially for the analysis of institutional reform. Several concepts are used in the psychological literature to classify mental states and events. To avoid possible confusions, a brief classification and definitions of them are offered below: • Attitudes According to a widely used handbook (Oskamp and Schultz 2005), attitudes are a disputed concept. The authors (2005: 8) offer representative definitions according to the specific aspect they highlight. – Comprehensive An attitude is a mental or neural state of readiness, organised through experience, exerting a directive or dynamic influence upon the individual’s response to all objects and situations with which it is related (Allport 1935: 810). – Simple Attitudes are likes and dislikes (Bem 1970: 14). – Evaluation Attitude is a psychological tendency that is expressed by evaluating a particular entity with some degree of favour or disfavour (Eagly and Chaiken 1993: 1). – Learning and consistency An attitude is a learned predisposition to respond in a consistently favourable or unfavourable manner with respect to a given object (Fishbein and Ajzen 1975: 6). A central feature of most definitions of attitude is the idea of readiness for response. This means that an attitude is not a behaviour, nor an action, but a disposition, and a predisposition for action. Metaphorically, if the action is to see, attitudes would be glasses that define what we see before we do it. Attitudes can be held towards things, people, ideas or even other attitudes (Oskamp and Schultz 2005: 8). Most models of attitudinal analyses involve the idea that attitudes have different aspects. The classic one is referred to as the tri-componential model or ABC model. This is composed of: (a) an affective (emotional) component: feelings and emotions

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towards the object; (b) a behavioural component: actions and tendencies towards the object; and, (c) a cognitive component: ideas and beliefs regarding the object (Oskamp and Schultz 2005: 9). Beliefs Beliefs indicate a person’s subjective assessment about an object, giving to it a particular characteristic. They support assumptions about the object or state a relationship between the object and some characteristic. Beliefs differ from attitudes because they are primarily cognitive, whereas attitudes involve an affective component (Oskamp and Schultz 2005: 13). Similarly, Skogan (1981a) defines beliefs as fact-images of the world that involve a cognitive assessment. Values Values are defined as important life-goals or societal conditions desired by a person. Values are usually broad abstract concepts, such as freedom, justice, beauty, happiness or service to others; although they can be concrete (for instance, money or material possessions). Values are a person’s goals, and individuals will have strong positive attitudes towards the values they hold. They are resistant to change and have influence over beliefs and attitudes (Oskamp and Schultz 2005: 15). Opinion Opinion is closely related to the concept of attitude, even so the two terms have been used synonymously. Nonetheless, according to Oskamp and Schultz (2005), opinions are beliefs, specifically evaluative beliefs. In other words, opinions area person’s judgements about the likelihood of events or relationships regarding some object, and they may involve evaluations of an event or object on specific dimensions. In this sense, public opinion is the analysis of collections of individual opinions. Behaviour It is defined as any observable or measurable activity carried out by a living being. Skogan (1981b) suggests that behaviour analysis depends on context. Behaviour only happens in concrete settings, and therefore the context and the scenario where it happens are critical for its understanding.

5.7 Behaviours, Opinions and Attitudes in Criminal Justice According to the previous theories, trust is an attitude, involving both cognitive and affective processes. It prepares a person for action and therefore, at least at some level, determines behaviour. Trust is influenced, but not determined by opinions and beliefs, and it can be transformed into behaviours in specific contexts. Regarding crime-related attitudes and behaviours, Skogan (1981a) suggests that the relationship between opinion and behaviour are not linear. The author identifies three kinds of assessment that can be done in relation to criminal justice: (1) beliefs about crime; (2) assessments of risk; and (3) fear of victimisation. Beliefs and opinions are formed based on experience and information, and primarily through media. In Skogan’s words, “the media, and not experience or vulnerability shapes opinion” (1981a: 23). The same claim is supported by Tankebe (2010), who suggests that opinion about criminal justice is shaped more by discourse than by actual experience.

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Moreover, Bradford (2011) argues that late modernity has increased individuals’ reflexivity and devalued the role of experience in opinion formation. Skogan (1981a) argues that behaviour is rooted in experience and assessments of one’s personal risk of victimisation, which are unrelated to general beliefs about crime. The author points out that assessment of risk is a more efficient predictor of behaviour because they represent an evaluation of people’s immediate environment. Skogan argues that risk assessments are an interpretation of their concrete situation, and that they are not affected by demographic variability. Therefore, they are an accurate representation of the reality of community conditions (Skogan 1981a: 23–27). Finally, the author defines fear of victimisation as an emotional state: the affective or emotional dimension of beliefs about crime. Nonetheless, fear is rational and related to the quantity of actual victimisation in the neighbourhood (Skogan 1981a: 27). For Hough (2004), fear of crime is a mental state, a long-lasting process of anxiety, which varies in its intensity and affects behaviour.

5.8 Why Analyse Trust in Law for Judicial Reform? Toharia (2003: 22) propose three reasons demonstrating the importance of public evaluation of the law. First, all institutions that exercise power or authority must be accountable for the use they make of it. Second, there now exist a widespread perception that courts are public institutions, funded with public money, and performing a public service. Public funds are scarce, and justice cannot be pursued at any cost; therefore, justice must be cost-efficient. Third, courts are service organisations and therefore should be focused on their consumers’ needs. From a theoretical perspective, Singer (2006: 243) proposes that in order to obtain legitimacy, legal systems have to be recognised as representing the values, or the “worldview” of large segments of the population. This social requirement is seen as the root of social stability in the framework of a Weberian perspective on the modern State.1 From this perspective, it is possible to hypothesise that judicial reforms aim to increase the identification of large segments of the population with the values of the legal system, and thus to increase the stability of governance. An extensive literature on attitudes to criminal justice exists in Britain and other English-speaking countries (Hough 2007a; Hough and Roberts 2004a, b, 2007; Roberts and Hough 2005; Roberts et al. 2003; Jackson 2004; Jackson and Sunshine 2007; Tyler 2006; Tyler and Huo 2002; Sunshine and Tyler 2003a, b). However, research in these fields is scarce, or non-existent, in Latin American countries, especially in the field of judicial reform. This lack of research is partly because large-scale 1 This

is based on the idea of legal-rational domination as the active consensus of the dominated through the rule of law (see Weber 1978: 36–37 “Bases of legitimacy”). As Rubin notes, the Weberian approach shows how commands are conceived or generated, but does not explain why they are obeyed, and should not be regarded as a theory of legitimacy (2005: 167).

5.8 Why Analyse Trust in Law for Judicial Reform?

85

surveys about crime and justice-related issues have only recently been mounted in the region.2 Most analysis of the relationship between public opinion and the criminal justice system has been based around the idea that efficiency of the latter is a key factor in shaping the former. In other words, more efficiency (crime reduction and more efficient sentencing) would result in more positive opinions about the system. This is the confidence approach. The procedural justice theorists proposed a different approach to the relationship between public attitudes and justice. According to this perspective, criminal justice systems work better if people have trust in them, and trust is possible only if people view the criminal justice system as fair (Tyler 2006; Tyler and Huo 2002; Sunshine and Tyler 2003a, b; Hough 2007b). This body of research suggests the existence of a strong relationship between compliance in the law and beliefs in procedural fairness. It shows that people are more concerned with fairness in their treatment by judicial actors than with the outcomes of their decisions (Tyler 2006; Tyler and Huo 2002; Sunshine and Tyler 2003a, b). In other words, “procedural justice” is valued as much as, or more than, “outcome justice”. Using this empirical approach to assess confidence in justice is an attempt to assess the legitimacy of the State, and its role in the use of force to resolve social conflict. This is the trust approach. However, compliance with the justice system, as procedural justice theorists suggest, is not a high-level process.3 Political scientists and law scholars are interested in the transformation of the judiciary, and the possible impact that it could have on the political process or in contingent politics. However, due to methodological limitations, analysis of confidence and trust in law should point primarily to a large-scale analysis of variations in public trust. Only this will allow assessment of the impact that judicial reform has on the relationship between people and the justice system. The effects of judicial reform can be seen both in improved respect for rights and more efficiency of the system for crime control. Both are aimed at improving trust in the criminal justice system. In this sense, analysis of confidence and trust in law in the context of a judicial reform process represents a challenge in any setting, but it is particularly serious when the setting is a country characterised by severe social inequality. Chapter 2 highlighted the conceptual limitations of the procedural justice approach in offering stronger theoretical support for judicial reform practice. To address these limitations, the analysis of inequality from a service user’s perspective could probe fruitful. 2 Cao

and Solomon Zhao (2005) offer one of the few examples of comparative analysis about confidence in justice in Latin America, basing their analysis on data from the World Values Survey. In the case of Chile, the establishment in 2003 of the Chilean Crime Survey marks a cornerstone, representing a reliable tool to assess the impact of the Criminal Procedure Reform. 3 An argument similar to Tiede’s (2004), on the effect that macro-discourses could have on confidence in justice, has been formulated by Skogan (2006). This relates to the effects that face-to-face encounters with the police have for trust in law. Unlike procedural justice theorists, Skogan (2006) argues that direct encounters with the police, whether satisfactory or not, have a negative impact on trust in law. In these terms, trust in law can only be raised with high-level initiatives, and not by low-level interaction, as the procedural justice model suggests.

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5.9 How to Assess a Judicial Reform? Toharia (2003) suggests the existence of differential publics for the justice system, which must be considered in order to achieve an integral evaluation of the justice system, and to evaluate its changes over time (Table 5.1). The publics are defined based on their position in the justice system and their degree of technical knowledge. On this basis, four groups are identified: • Justice System operators (Judges, Prosecutors and Defenders) are system insiders. Judicial operators assume that they are the only ones capable of evaluating their work and that any other kind of assessment would be misleading or even prejudicial to their activity. • Related professionals (academics, attorneys, journalists, legislators, etc.) do not hold positions inside the system, but have permanent contact and specialised knowledge of the system’s operation. It is expected that their perspectives complement the operator’s work. Both can formulate expert opinions on the analysis of the justice system; nonetheless, their closeness to the system can bias their judgement. In the case of the Chilean judicial reform, these two groups were the basic source for evaluation of the process (Baytelman 2002; Baytelman and Duce 2003; GTZ 2006). • The non-expert publics are users that can give an insider’s approach, given their experience with the system’s operation. In a consumer-orientated organisation, their experience would become the primary source for institutional development. • The general public involves the potential users of the system and can give a unique approach regarding the social legitimacy of the system. The possibility of measuring social legitimacy makes public opinion polls an important instrument for the evaluation of the criminal justice system. Toharia (2003) proposes that social legitimacy of the system can be addressed as a twofold process. It should (a) assess the procedures and operation of the system and; (b) compare its trust and credibility. Also, it should look at the actual operation of the system as well as confidence and trust in it. In Toharia’s view, efficiency involves two dimensions: (1) perceived efficacy (ability to devise timely and adequate responses it is called on to make), and (2) effectiveness of the system (capacity to implement effectively). In this book, the perceived efficacy of the system is defined as confidence in justice, while the effectiveness of the system is the actual operation of it. Regarding social legitimacy, Toharia defines it as the capacity to generate

Table 5.1 Relevant publics and the system of justice: status and technical knowledge (Toharia 2003)

Position vis-à-vis the system of justice

Level of technical knowledge High

Low

Internal

Operators

Users

External

Related professionals

General public

5.9 How to Assess a Judicial Reform?

87

Table 5.2 Efficiency and social legitimacy dimensions (Toharia 2003) Efficiency (confidence)

Social legitimacy (trust) High

Low

High

A

B

Low

C

D

Table 5.3 A basic typology of social attitudes towards the justice system (Toharia 2003) Citizens’ terms of evaluation of the system

Resulting dominant feeling

Resulting dominant attitude

Confidence

Trust

High

High

Identified

Loyalty

Low

High

Disappointed

Voice/loyalty

High

Low

Diffident

Voice/exit

Low

Low

Alienated

Exit/refusal to enter

the belief that judicial authorities deserve obedience and respect. It is considered equivalent to the concept of trust used in this book. Toharia (2003) notes that, even when regular public assessments of institutions tend to be associated, they are not necessarily correlated. To analyse this phenomenon, he proposes a matrix (see Table 5.2) regarding the perceived legitimacy of the justice system. On the basis of this four-cell matrix, Toharia (2003), building on the work of Hirschman (1970), develops a set of attitudes. According to Hirschman’s classical definition, three attitudes characterise the relationship with organisations when the quality of service is not perceived as optimum. The first is loyalty, which involves the maintenance of the relationship with the organisation. As it can be seen in Table 5.3, the justice system will command loyalty, as far as there is trust in it. The second is voice, which involves the claim towards the organisation for changes. Finally, there is exit, which means the abandonment of the relationship. This does not necessarily mean no longer being subject to the action of the law, but it could mean the loss of respect for authority and engagement in non-legal behaviour.

5.10 Data Sources: How to Assess the Effects of Chilean Criminal Procedure Reform? In Chile, since 1997, there has been a system of criminal information constituted by the so-called major social crimes. This is administered by the Under Secretariat of Public Safety, and before by Home Office’s Public Security Division. It consists of administrative data from police forces. This data is published on a quarterly basis.

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Before the implementation of the Chilean Crime Survey in 2003, the Home Office regularly conducted several victimisation and public perception surveys in the Metropolitan Region of Santiago. However, the conceptual and sampling frameworks varied, making comparison impossible (Dammert 2005). Since 1998, the Paz Ciudadana Foundation administers twice yearly telephone survey on crime issues. These incorporate victimisation information, which, despite other methodological constraints, is one of the few continuous sources of data available in the country. One of the themes that have arisen during the last decade in Chilean political debate is victimisation. Discussion centred on the degree to which public crime statistics (mainly police corps statistics) were representative of the real amounts of crime committed. This debate contributed to the development of a national victimisation survey, through an alliance between the Home Office and the INE. The intention was to carry this out on a two-year basis, with national, regional and communal urban zones represented. The implementation of the Chilean Crime Survey in 2003 was highly celebrated by crime analysts, as we can see in Dammert’s (2005: 24) (translated) affirmation: In a lamentable situation, the sources quoted previously [the victimization surveys carried out in Santiago de Chile by the Home Office, and the crime survey mounted twice a year by the Paz Ciudadana Foundation] don’t allow us to bring up a general perspective of the phenomena in the country. Taking into account this limitation, in 2003, the Home Office jointly with the National Institute of Statistics mounted the first national survey of citizen security that has statistical representation of the 13 regions … By this, was given the first step to develop a serious and long-time analysis strategy in the field.

5.10.1 The Chilean Crime Survey While the Chilean Crime Survey (CCS) has a national scope, financial constraints limited it to urban areas. In 2005 marked the beginning of yearly implementation. For this research, three sweeps will be used: 2003, 2005 and 2006, which were carried out during September and November of their respective years, by personnel from the INE. The model of analysis is cross-sectional and based on the sampling framework derived from the 1992 census.4 The sample follows a three-stage model, encompassing census strata, household and respondent. The survey is highly reliable, as Table 5.4 shows. Interviews are face-to-face, with respondents being 15 years of age and older. Following other practices (the BCS, the International Crime Victimization Survey) the scope for questions is based on the prior 12 months for victimisation issues.

4 The

framework based on the 2002 census was implemented for the 2007 intake, therefore not allowing comparison.

5.10 Data Sources: How to Assess the Effects … Table 5.4 CCS: technical features (INE 2003–2006)

89

2003

2005

2006

Total sample

16,289

19,875

20,487

Households represented

3,650,306

3,804,181

3,902,987

Population represented

9,969,242

10,359,291

10,527,337

Communes

77

92

92

Absolute errors

Table 5.5 Stages of implementation of the CPR (Stippel 2006)

– National

0.57%

0.57%

0.57%

– Regional

3.0–3.2%

3.0–3.2%

3.0–3.2%

– Communal

4.5–5.2%

4.5–5.2%

4.5–5.2%

Stage

Start

Regions

First

16.12.2000

IV and IX

Second

16.10.2001

II, III and VII

Third

16.12.2002

I, XI and XII

Fourth

16.12.2003

V, VI, VIII and X

Fifth

16.06.2005

Metropolitan Region of Santiago

The data considers four different weighting factors, differentiating between National-Regional and municipality areas of estimation, and between households or persons as units of analysis.

5.10.2 The CPR Model of Implementation Taking advantage of the geography of the country, the reform was implemented in successive stages. The aim was to facilitate organisational learning and allow considerable training for actors (prosecutors, judges and defenders) that the new process required. Implementation was based on a five-stage strategy between 2000 and 2005. The geographical distribution of the country and the stages in which the reform was implemented are shown in Table 5.5. This sequential implementation allowed administrative assessment of changes in the criminal justice system, both in terms of reduction of average times taken to sentence, and provision of information about workload that enabled calculation of the human resources necessary for subsequent stages.

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5 The Assessment of a Judicial Reform Through Public Opinion …

5.10.3 Analysis of the CPR’s Effects on Confidence in Justice Through the CCS This sequential model of implementation allows for the analyses of the changes in the public perception of justice, and in the victimisation-related indicators of the Criminal Procedure Reform. Virtually, no research has focused on this issue. Instead, most of the research relates to the relationship between victimisation and public security in the early stages of the reform (Azócar and Undurraga 2005; Mohor and Covarrubias 2007). Although valuable, these efforts do not represent a systematic analysis of the subject. The lack of analysis of the relationship between confidence in justice and the CPR could be explained by the unavailability of data at the time of implementation of the reform. However, the second sweep of the survey in mid-2006 provided an opportunity to analyse this issue in more detail. Table 5.6 shows how the sequential implementation of the CPR, and the crosssectional model of the CCS, allow assessment of the variations after the implementation of the CPR in Stages IV and V, using Stages I–III as control groups. However, until the publication of the full database of the 2006 CCS, it will not be possible to accurately assess the effects that the reform had in the Metropolitan Region. This is important, as 40% of the Chilean population live in this area.

Table 5.6 Scheme of CPR’s implementation (Ministry of Justice—INE) Region

CPR implementation

CCS 2003

Months since CPR

CCS 2005

Months since CPR

CCS 2006

Months since CPR

1

Dec-02

Oct-03

10

Oct-05

35

Oct-06

47

2

Oct-01

Oct-03

24

Oct-05

49

Oct-06

61

3

Oct-01

Oct-03

24

Oct-05

49

Oct-06

61

4

Dec-00

Oct-03

34

Oct-05

59

Oct-06

71

5

Dec-03

Oct-03

–

Oct-05

22

Oct-06

35

6

Dec-03

Oct-03

–

Oct-05

22

Oct-06

35

7

Oct-01

Oct-03

24

Oct-05

49

Oct-06

61

8

Dec-03

Oct-03

–

Oct-05

22

Oct-06

35

9

Dec-00

Oct-03

34

Oct-05

59

Oct-06

71

10

Dec-03

Oct-03

–

Oct-05

22

Oct-06

35

11

Dec-02

Oct-03

10

Oct-05

35

Oct-06

47

12

Dec-02

Oct-03

10

Oct-05

35

Oct-06

47

RM

Jun-05

Oct-03

–

Oct-05

4

Oct-06

16

Obscured zones: areas for quasi-experimental design

5.10 Data Sources: How to Assess the Effects …

91

The use of CCS 2003 as a baseline allows the control of the CCS effect in the case of regions 5, 6, 8 and 11 (which comprise 28% of the population), using as a control group the changes of two different groups: (A) Regions in which the CPR was implemented before, and where the new practices had been established for a reasonable period of time. (B) The metropolitan region (RM), where the CPR had only been implemented four months before the second sweep on 2005 (adding this area to the experimental group for the 2006 analysis comprises 68% of the total population). Regrettably is not possible to assess the effects on the first three stages of the reform. However, analysis of Stages IV and V could provide a reliable approach to analyse the situation. In any case, the results will be presented separately for each stage of the CPR.

5.11 Research Question Having considered the restrictions described above, the question that guides this research is: Has the criminal procedure reform in Chile meant an increase in confidence in justice and trust in law? If yes: • Which have been the most affected population groups in this process? • Which have been the most affected institutions in this process?

5.12 Objectives • Identify whether there is an effect on confidence in justice due to the implementation of the Criminal Procedure Reform in Chile. • Identify the institutions that show important variations over time in their public perception during the Criminal Procedure Reform. • Identify population groups that show greatest variation in their confidence in justice during the analysed period.

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5.13 Hypotheses Under Test For these objectives, the following hypotheses are proposed: • There is an increase in confidence in justice attributable to the implementation of a fairer judicial process through the implementation of the Criminal Procedure Reform. This hypothesis is drawn from academic debate and theoretical propositions derived from the procedural justice literature. • The largest changes in public attitudes will relate to the new justice system institutions (public prosecutor and public defence) and the courts of justice. • The changes will be greater for the higher social strata (ABC1) than the lower strata.

5.14 Methods Through analysis of the CCS series (2003–2006), one can observe the transformations occurring in victimisation, trust in law and confidence in justice, derived from changes to criminal policy introduced by the CPR. In order to do this, a quasi-experimental approach will be used. The analysis will use each dataset as an independent sample. Data will be analysed using SPSS for Windows version 15. (a) To assess association between groups: • Chi-Square for categorical variables • Correlations for scale and ordinal variables (b) To assess differences between groups • Z tests of proportions • Analysis of covariance (c) To identify underlying concepts and for scale validation • Exploratory factor analysis • Cronbach’s alpha statistic (d) If significant differences are found, linear or logistic models will be used to explain the differences: • Linear in case of scale variables • Logistic in case of categorical and binary variables (e) To analyse the stability of confidence in justice over time, structural equation models will be used.

References

93

References Allport, G.W. 1935. Attitudes. In Handbook of social psychology, ed. C. Murchison. Worcester: Clark University Press. Azócar, M., and B. Undurraga. 2005. Reforma Procesal Penal y Seguridad Ciudadana: Análisis de cuatro indicadores. Documento de Trabajo Instituto de Investigaciones en Ciencias Sociales. Santiago de Chile: Universidad Diego Portales. Baier, A. 1986. Trust and antitrust. Ethics 96 (2): 231–260. Bauman, Z. 1991. Modernity and Ambivalence. Oxford: Polity Press. Baytelman, A. 2002. Evaluación de la Reforma Procesal Penal. Santiago de Chile: Universidad Diego Portales/Justice Studies Center of the Americas. Baytelman, A., and M. Duce. 2003. Evaluación de la Reforma Procesal Penal: Análisis de una reforma en marcha. Santiago de Chile: Universidad Diego Portales/Justice Studies Center of the Americas. Bem, D.J. 1970. Beliefs, attitudes, and human affairs. Belmont, CA: Brooks/Cole. Bradford, B. 2011. Convergence, not divergence? Trends and trajectories in public contact and confidence in the police. British Journal of Criminology 51 (1): 179–200. Braudel, F. 1960. History and the social sciences: The long duration. American Behavioral Scientist 3 (6): 3–13. Cao, L., and J. Solomon Zhao. 2005. Confidence in the police in Latin America. Journal of Criminal Justice 33: 403–412. Dammert, L. 2005. Violencia Criminal y Seguridad Ciudadana en Chile. Social Policy Series N° 109. Santiago, Chile: ECLAC. LC/L.2308-P. Durkheim, E. 1997. The Division of Labor in Society. New York: Free Press. Eagly, A.H., and Chaiken, S. 1993. The psychology of attitudes. Fort Worth, TX: Harcourt Brace Jovanovich. Fishbein, M., and Ajzen, I. 1975. Belief, attitude, intention, and behavior: An introduction to theory and research. Reading, MA: Addison-Wesley. Giddens, A. 1991. The Consequences of Modernity. Cambridge: Polity Press. GTZ, Proyecto Reforma Judicial Chile. 2006. Informe evaluación talleres de diálogo de la Reforma Procesal Penal. Santiago: GTZ. Hirschman, A. 1970. Exit, voice, and loyalty: Responses to decline in firms, organizations, and states. Cambridge, MA: Harvard University Press. Hobbes, T. 1982. Leviathan. London: Penguin Classics. Hough, M. 2004. Worry about crime: Mental events or mental states?. International Journal of Social Research Methodology 7 (2): 173–76. Hough, M. 2007a. Policing London, 20 years on. In Transformations of Policing, eds. A. Henry, and D. Smith, 191–212. Hampshire: Ashgate. Hough, M. 2007b. Research on victimisation and insecurity in Britain. National Report for CRIMPREV presented at the seminar on crime prevention and social integration policies. Barcelona, 19th and 20th April 2007. Hough, M., and J. Roberts. 2004a. Youth Crime and Youth Justice: Public Opinion in England and Wales. Bristol: Policy Press. Hough, M., and J. Roberts. 2004b. Confidence in Justice: An international review. London: Institute for Criminal Policy Research. Hough, M., and J. Roberts. 2007. Public opinion, crime and criminal justice: The british crime survey and beyond. In Surveying Crime in the 21st century eds. M. Hough, and M. Maxfield. Cullompton: Willan. Hume, D. 1985. A Treatise of Human Nature. London: Penguin Classics. Jackson, J. 2004. Experience and expression: Social and cultural significance in the fear of crime. British Journal of Criminology 44: 946–966. Jackson, J., and J. Sunshine. 2007. Public confidence in policing: A neo-Durkheimian perspective. British Journal of Criminology 47: 214–233.

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Kant, I. 2007. Critique of Pure Reason. London: Penguin Classics. Locke, J. 1997. An Essay Concerning Human Understanding. London: Penguin Classics. Machiavelli, N. 2011. The Prince. London: Penguin Classics. Marx, K., and F. Engels. 2002. The Communist Manifesto. London: Penguin Classics. Marx, K., and F. Engels. 2011. The communist manifesto. London: Penguin Classics. Mohor, A., and V. Covarrubias. 2007. El Nuevo Procedimiento Penal en Chile. Santiago: Ril. Oskamp, S., and P. Schultz. 2005. Attitudes and Opinions. Mahwah, NJ: Lawrence Erlbaum Associates. Plato/Platón. 2003. La República (The Republic) Barcelona: Gredos. Roberts, J., and M. Hough. 2005. Understanding Public Attitudes to Criminal Justice. Maidenhead: Open University Press. Roberts, J., L. Stalans, D. Indermaur, and M. Hough. 2003. Penal Populism and Public Opinion: Lessons from five countries. New York: Oxford University Press. Schuman, H., and M. Johnson. 1976. Attitudes and behavior. Annual Review of Sociology 2: 161–207. Singer, M. 2006. Legitimacy criteria for legal systems. King’s Law Journal 17 (2): 229–254. Skogan, W. 1981a. On attitudes and behavior. In Reactions to crime, ed. D. Lewis. Beverly Hills, CA: Sage. Skogan, W. 1981b. Assessing the behavioral context of victimization. Journal of Criminal Law and Criminology 72 (2): 727–742. Skogan, W. 2006. Asymmetry in the impact of encounters with police. Policing and Society 16: 99–126. Stippel, J. 2006. Las Cárceles y la Búsqueda de una Política Criminal para Chile. Santiago de Chile: Lom Editores. Sunshine, J., and T. Tyler. 2003a. Moral solidarity, identification with the community, and the importance of procedural justice: The police as prototypical representatives of a group’s moral values. Social Psychology Quarterly 66: 153–165. Sunshine, J., and T. Tyler. 2003b. The role of procedural justice and legitimacy in shaping public support for policing. Law and Society Review 37: 555–589. Tankebe, J. 2010. Public confidence in the police: Testing the effects of experience of police corruption in Ghana. British Journal of Criminology 50 (2): 296–319. Tiede, L. 2004. Committing to justice: An analysis of criminal law reforms in Chile. CILAS Working Paper N°22, Center for Iberian and Latin American Studies California: University of California, San Diego. Toharia, J. 2003. Evaluating systems of justice through public opinion: Why, what, who, how, and what for? In Beyond Common Knowledge, eds. E. Jensen, and T. Heller, 21–62. Stanford: Stanford University Press. Tonkiss, F., and A. Passey. 1999. Trust, confidence and voluntary organisations: Between values and institutions. Sociology 33 (2): 257–274. Tyler, T.R. 1989. The psychology of procedural justice: A test of the group value model. Journal of Personality and Social Psychology 57: 850–863. Tyler, T.R. 2006. Why people obey the law. Princeton: Princeton University Press. Tyler, T.R., and Y. Huo. 2002. Trust in the law: Encouraging public cooperation with the police and courts. New York: Russell Sage Foundation. Weber, M. 1978. Economy and Society, vol. I. Berkeley: University of California Press.

Chapter 6

An Overview of the Effects of the Chilean Criminal Procedure Reform

6.1 General Although the model of implementation of the CPR allows sophisticated analysis of the effects of judicial reform in attitudes and behaviours, this chapter will deal with how these changes were interpreted differentially by different social groups. In other words, how did this change affect people’s perceptions and actions towards the criminal justice system during the implementation of the reform? Chilean data changes in four dimensions (victimisation and reporting practices, fear of crime, weapons ownership and public opinion about criminal justice actors) which will be assessed as possible indicators for the analysis of judicial reforms. First is the victimisation and reporting practices, which are culturally dependent (Lea and Young 1984) and are a direct indicator of public engagement with the justice system. Second is fear of crime, which can be seen as an indicator of social integration. The third relates to weapons ownership, as an indicator of the monopoly of the use of force by the State. Fourth is the public opinion about criminal justice actors, to assess the expressive dimension of trust in the criminal justice system, and also as an indicator of willingness to collaborate with it (Tyler and Huo 2002).

6.2 Victimisation and Reporting Practices Figure 6.1 shows that the rate of victimisation fell between 2003 and 2006, from 43 to 39.4%. Similarly, the rate of reporting (the proportion of victimised households that reported a crime at least once during the survey period) has followed a similar trend (42.3–39.4%). Significance tests (Z test for proportions) show that the differences are significant for all the data reported, except for victimisation between 2005 and 2006. Although useful, aggregated data is not sufficient evidence to describe the effects of the CPR and the role of social characteristics on victimisation and reporting. To © Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_6

95

96

6 An Overview of the Effects of the Chilean … 44 43 42 41 40 39 38 37 36 35

43 42.3

39.4 38.3 38.4

37.9

2003

2005 Victimization

2006 Report

Fig. 6.1 Victimisation and reporting trends CCS 2003–2006. Victimisation: 2003–2005; 2003–2006 (Z test p < 0.05); Report: 2003–2005; 2003–2006; 2005–2006 (Z test p < 0.05) Table 6.1 Victimisation and reporting by social strata CCS 2003–2006

2003

2005

2006

ABC1

46.9

52.3*

47.9**

C2

48.9

46.2*

48.0**

Victimisation

C3

45.9

41.7*

41.6*

D

40.7

35.5*

35.6*

E

36.9

32.3*

27.4**

57.8

41.8*

46.2**

Report ABC1 C2

47.2

45.7*

44.3**

C3

43.1

38.7*

39.9**

D

40.3

35.2*

37.3**

E

42.3

39.2*

40.3**

The socio-economic classification used in the survey is based on the ESOMAR model. It is composed of a five-point scale ranging from ABC1 (higher strata) to E (lower strata). Households were classified in these categories according to a scale of household equipment and characteristics *: Significant difference with 2003 (Z test p < 0.05); **: Significant difference with 2003 and 2005 (Z test p < 0.05)

fully grasp these effects, it is necessary to analyse information at more disaggregated levels (see Table 6.1). It is possible to make two observations based on the data presented in Table 6.1. First, victimisation is focused on higher social strata; in fact, the trend shows a diminution in the victimisation of the lower strata. Second, the reporting rates seem to have been diminished in comparison with those of 2003 in all strata. Nonetheless, between 2005 and 2006 rates seem to be going up.

6.2 Victimisation and Reporting Practices

97

Table 6.2 Self-socio-economic classification by actual socio-economic classification (in %) Socio-economic classification (by dwelling characteristics)

Self-socio-economic classification ABC1 C2

C3

D

ABC1

9.2

41.8

35.7

10.0

3.3

100

C2

0.9

25.3

65.1

7.2

1.6

100

C3

0.3

3.0

64.5

26.9

5.3

100

D

0.1

0.9

27.2

45.0

26.8

100

E

0.3

0.5

12.5

28.0

58.8

100

E

Total

CCS 2003–2006

These findings have three possible interpretations: a criminal-behavioural one; a criminal policy-related one; and a social action-based one. In the first, Chilean offenders would use Robin Hood-style criminal strategies, choosing their victims mainly from the higher strata and subsequently reducing the victimisation of the lower strata. Cooper (1994) proposed this hypothesis and suggests the existence of a country-specific criminal cultural pattern. Using this logic, stealing from richer people would be a goal for the common criminal in Chile, being this a way to obtain occupational prestige and respect from other criminals. On the other hand, stealing from the poor is seen as breaking a subcultural norm, therefore worthy of punishment or disrespect within the criminal community. In the second interpretation, the answer could be a concentration of police work in lower strata neighbourhoods, with more efficient policing yielding deterrence and incapacitation effects through imprisonment. The third interpretation is related to differential perception of victimisation, meaning that what for some people could be a crime, for other people could not. As previously shown, this theory of a culturally based self-attribution of victimisation, and differential reporting rates, was promoted in Britain by Lea and Young (1984) and developed further by cultural criminology theorists (Hayward and Young 2007). A similar conclusion could be drawn from a social identity perspective, based on the self-perception of the socio-economic group and its relation with the indicators mentioned above. Luckily, the 2003 version of the CCS enables the distinction between actual and perceived socio-economic status. A simple correlation analysis shows that the relation between these variables is statistically significant and moderate for the year 2003 (r: 0.531. p < 0.01) (Table 6.2). This means that, although related, these two variables behave slightly differently. However, it is possible to identify a trend towards the mid-point in self-classification. This trend is evident in the higher strata (only 9.2% of those classified by the interviewer as ABC1 identify them as belonging to the higher strata. Conversely, 58.8% of the poorer people identify themselves as being very poor). From the perspective of social identity-based strata, the identification of both victimisation and crime reporting should be inversely related to self-attributed social strata. On this basis, victimisation and crime reporting should be higher in higher

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6 An Overview of the Effects of the Chilean …

Table 6.3 Victimisation and reporting rates by self-socio-economic classification and actual socioeconomic classification 2003 (CCS, 2003)

Socio-economic classification (by dwelling characteristics)

Self-socio-economic classification

ABC1

Have you or a member of your household been the victim of a crime in the last 12 months?

Did you report the crime?

Yes

Yes

No

%

No

%

15,728

46.9

C2

138,133* 144,389

48.9

C3

626,637* 737,120

45.9

D

670,576* 978,923

40.7

270,499* 378,455

41.7

E

119,242* 204,141

36.9

50,460*

66,422

43.2

57.3

3059

3778

44.7

31,052*

ABC1 C2

13,909*

6837*

5089

68,428*

8041*

4965

61.8

65,206*

70,037

48.2

270,315* 341,781

44.2

70,713

49.2

34,989

47.0

C3

701,019* 839,203

45.5

310,771* 375,325

45.3

D

518,633* 682,627

43.2

211,071* 294,517

41.7

E

251,935* 445,043

36.1

101,322* 140,392

41.9

*Z test (p < 0.05); Association measures: Socio-economic classification: Victimisation (X 2 = 20,485.375; p < 0.001); Socio-economic classification: Report (X 2 = 3984.664; p < 0.001); Selfclassification: Victimisation (X 2 = 82,726.426; p < 0.001); Self-classification: Victimisation (X 2 = 2102.102; p < 0.001)

social strata, due to a disposition to recognise offences and to ask the State to impose punishment. On the other hand, lower strata members would be expected to identify and report less crime (Table 6.3). As we can see in Table 6.3, victimisation and report rates are associated with selfperception of socio-economic status and socio-economic group. Moreover, there are statistically significant differences between victimisation rates based on the criteria of socio-economic classification. This is higher in those that perceive themselves as belonging to the highest socio-economic strata, and lowest in those that perceive themselves as poorer. This variation in victimisation identification seems to be coherent with the model proposed by Lea and Young (1984). Furthermore, report rates are also affected by self-classification, except in the case of the higher strata, where no significant differences were found. Nonetheless, when comparing the rates of reporting between the two types of socio-economic classification, there is a higher rate for those classified by the interviewer than for those who classified themselves as better off. This situation seems to be consistent with a model based on a social identity approach, showing higher rates of report in groups that identify themselves as belonging to higher social strata, and to highly valued groups. According to Jackson and Sunshine (2007), within this approach people use their group membership to define themselves and their self-worth; also group authorities are seen as prototypical, reflecting group values. In other words, individuals derive their identity and seek

6.2 Victimisation and Reporting Practices Table 6.4 Victimisation and reporting by CPR stage

99

2003

2005

2006

I

46.2

39.2*

34.4**

II

51.3

40.8*

41.1**

III

50.5

44.6*

38.1**

IV

37.8

36.4*

34.1**

V

43.9

38.7*

42.0**

I

46.6

44.2*

38.8**

II

44.2

36.8*

40.4**

III

35.9

34.5*

34.8**

IV

44.8

40.5*

40.1*

V

40.1

35.5*

39.1**

Victimisation

Report

*: Significant difference from 2003 (Z test p < 0.05); **: Significant difference with 2003 and 2005 (Z test p < 0.05)

status-related information from group participation. The ones with high status are less likely to be concerned with the prototypicality of group authorities, and people with low status will be more sensitive towards authorities and to social order. From a procedural justice perspective, these results could indicate that people will be more confident about reporting to the police if they identify themselves as valued members of society. The effects of the CPR in victimisation and reporting are presented in Table 6.4. It is important to note that earlier stages of reform imply a longer time of exposure to the CPR. CPR’s implementation seems to have had effects that could be regarded as contradictory. On one side, victimisation rates diminished in almost all regions during the period analysed, which could be interpreted as either a deterrent effect of the new institutions or a sign of increased compliance with the law. On the other side, differential falling numbers in all stages cannot be seen as a sign of greater normative compliance. In this sense, it is possible to argue that a falling victimisation rate, based on a higher law compliance, should also mean an increase in the rate of reporting, as procedures associated with a fairer and speedier justice system should be correlated with people’s higher identification with it (Tyler and Huo 2002). In other words, if norms are more internalised by social actors, the claim for punishment, retribution or retaliation should be higher. However, this does not seem to be the case in Chile. Jackson and Sunshine (2007) have an alternative approach; social integration within the community means an increased sensitivity to issues of social order and breakdown. This would affect victimisation rates, increasing them, but it would not encourage cooperation with the criminal justice system.

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6 An Overview of the Effects of the Chilean …

6.3 Fear of Crime and Protective Measures The second focus of analysis is the effects that the implementation of the judicial reform could have had on fear of crime measures. This analysis will show perceptions related to being victim of a crime and behaviours associated with those perceptions. First, it will examine an open question regarding concerns about being victimised and then a situational and environment-related one, and finally a behavioural one, which enquires about what steps taken to avoid crime. The analysis of perceptions related to the public dimension of fear of crime, when crime is discussed and explained in a rational form, seems to reflect social concerns related to victimisation and quality of life. These concerns are different from the emotional experience that fear of crime represents in reality but constitutes a reliable basis for its analysis (Jackson 2004; Farrall et al. 2006). Table 6.5 shows that, over time, it is possible to see a statistically significant increase in the expectation of being a victim of crime in almost all social groups, whether male or female, and across socio-economic and age groups. It is possible to evidence that expressive fear of crime (Farrall et al. 2006) is declared by about half of the population, regardless of social classification, and that it increased during the period analysed. Also, looking at the stage of implementation of the CPR, people who had experienced the reform longer declared that they felt less secure. On the contrary, when a more situated measure (intend to place crime in context) of fear of crime is examined, it shows a different picture. Consequently, the location of where worry or fear takes place is an important element to address. When considering this factor, about a third of the total population declared that they feel unsafe, in comparison with the approximate half, who expected to be victimised according to the previous analysis. Responses to this classic “safety” question are shown in Table 6.6. There are clear differences between general and situational measures of fear of crime. While the first measure shows higher levels and small differences between genders, the situational measure yields lower levels of worry and large gender differences. This result is due to a machismo-related bias in this kind of question (Sutton and Farrall 2005). Moreover, it is possible to evidence an inverse relation between situational fear and age, which is different from the more abstract dimension of fear that showed elderly people as less worried. The rationale behind this difference is that elderly people have concerns not only about crime, but also about social integration and use of public spaces (Hough 1995). In this way, they could feel safe in their protected routines, but when asked to consider a less protected environment, they feel more vulnerable. Finally, a behavioural approach is used to assess the changes in fear of crime and insecurity during the period under analysis. This approach relates to people’s reactions to worry about crime. The question included in the CCS is aimed at identifying

6.3 Fear of Crime and Protective Measures Table 6.5 People expecting to be victimised in the next 12 months

101

2003

2005

2006

Male

54.3

57.5*

57.7**

Female

55.6

56.4*

57.2**

Sex

Socio-economic strata ABC1

46.3

59.0*

48.1**

C2

53.5

51.0*

49.6**

C3

57.4

58.5*

58.4*

D

53.9

57.0*

58.5**

E

52.0

55.2*

55.9**

15–19

52.2

55.1*

57.9**

20–24

58.0

62.5*

60.5**

25–29

57.1

59.4*

57.4**

30–39

56.0

56.1

57.7**

40–49

59.0

59.6*

60.5**

50–59

56.9

60.0*

58.8**

60 or more

45.8

49.1*

50.9**

I

56.0

65.3*

68.5**

II

64.7

60.4*

62.0**

III

57.4

54.9*

48.3**

IV

55.2

59.1*

58.9**

V

52.2

53.5*

54.1**

Age group

CPR stage

CCS 2003–2006 *: Significant difference with 2003 (Z test p < 0.05); **: Significant difference with 2003 and 2005 (Z test p < 0.05)

whether people have taken active measures to protect themselves against crime.1 This is important in measuring concrete reactions to crime, rather than social concerns or issues related to social integration (Table 6.7). The data shows that a behavioural approach seems to yield different findings from the general attribution of worry about crime and from the narrower situational measure. Four in ten persons declared that they had taken some kind of protective measure against crime in the last 12 months. It is possible to observe differences in the trends of actions taken by socioeconomic groups. In the richest and poorer strata, there are measured reductions, 1 Among

the active measures taken were: buying a gun, avoiding going out at night, installing an alarm, installing fences, buying insurance, getting a dog, hiring a private guard and moving homes. The most common measure taken across the three years was to install fences.

102 Table 6.6 How safe do you feel walking alone in your neighbourhood at night?

6 An Overview of the Effects of the Chilean …

2003

2005

2006

Male

16.6

19.7*

20.9**

Female

29.7

34.4*

35.1**

Sex

Socio-economic strata ABC1

26.9

22.7*

25.3*

C2

21.2

21.4*

21.1***

C3

22.0

26.6*

27.5**

D

24.8

28.6*

30.0**

E

23.2

28.9*

29.1**

15–19

18.6

21.2*

24.8**

20–24

19.8

22.2*

21.8**

25–29

19.9

23.6*

24.8**

30–39

22.2

25.2*

25.0**

40–49

23.3

27.1*

26.7**

50–59

24.9

29.2*

29.2**

60 or more

30.8

37.1*

39.7**

I

21.1

27.0*

29.2**

II

25.3

26.8*

25.0**

III

22.4

24.2*

22.7**

IV

21.4

28.4*

26.0**

V

24.9

27.0*

31.0**

Age group

CPR stage

(Categories very insecure/extremely insecure) (CCS, 2003–2006) *: Significant difference from 2003 (Z test p < 0.05); **: Significant difference from 2003 and 2005 (Z test p < 0.05); ***: Significant difference from 2005 (Z test p < 0.05)

while in the middle groups, there are increases. No trend differences can be found when disaggregating by gender. Neither is there a clear trend by age group or by stage of implementation of the CPR. The behavioural approach seems to contradict with the general and situational measure. For the latter two, worry increases in the earliest stage of the CPR during 2003–05; adversely, when using the behavioural measure, worry decreases in the same period. In summary, different approaches for fear of crime analysis show contradictory results. Therefore, fear of crime is too complex a phenomenon to be used as an indicator of judicial reform success.

6.3 Fear of Crime and Protective Measures Table 6.7 People who declared that they had taken measures against crime in the last 12 months

103

2003

2005

2006

Male

38.8

35.8*

37.4**

Female

38.4

35.9*

37.9**

Sex

Socio-economic strata ABC1

50.5

39.1*

37.7**

C2

45.5

43.9*

49.0**

C3

42.3

42.7*

42.7*

D

36.4

32.0*

33.5**

E

27.2

23.8*

25.9**

15–19

38.1

32.3*

36.4**

20–24

36.6

36.3*

35.7**

25–29

39.2

37.0

39.3***

30–39

41.6

38.0*

40.0**

40–49

41.9

38.0*

41.3**

50–59

37.8

36.9*

38.5**

60 or more

33.6

32.1*

32.1*

I

51.8

34.5*

36.5**

II

46.9

42.5*

39.1**

III

42.6

43.4*

36.9**

IV

36.2

37.9*

36.9**

V

36.1

32.5*

38.1**

Age group

CPR stage

CCS 2003–2006 *: Significant difference from 2003 (Z test p < 0.05); **: Significant difference from 2003 and 2005 (Z test p < 0.05); ***: Significant difference from 2005 (Z test p < 0.05)

Considering this from the perspective of judicial reform assessment, it seems more appropriate to use a behaviour-based perspective. This entails looking at arguably the most extreme form of self-protection available to people—weapons ownership.

6.4 Carrying Firearms and the State’s Monopoly on the Legitimate Physical Violence Since the origin of the theory of the State, a common justification for its existence has been the regulation of violence (Weber 1978). The idea of a social contract has

104

6 An Overview of the Effects of the Chilean …

been criticised for its medieval origins (Rubin 2005), whether the contract is based on the general will (in its continental version), on the need for self-protection (in the Hobbesian perspective), or in person and property (in the Lockesian one). In these contracts, people consent to be ruled by a sovereign and its administrative body in order to obtain protection and the ability to live a happy, productive life. This remains one of the core concepts in law and politics. On the other hand, social science-based approaches, such as the Weberian analysis of authority and legitimacy creation and maintenance, identify the main feature of the State as its capability to maintain the monopoly of legitimate physical violence in a given territory, through the active consensus of the dominated. Similarly, sociopsychological approaches to law analyse compliance as the key element of their relation between the individual and the State. These models have different theoretical bases and, as Rubin (2005) suggests, represent different epochal perspectives about human nature. However, the will to arm oneself can be seen from these perspectives as an explicit recognition that the State cannot protect us from everything. It is also recognition of the State’s inability to control the exercise of violence in its territory, either through the breaking of a social contract or through limited ability to regain the compliance of its citizens. Regarding the second alternative, as Rubin suggests, the analysis of weapons ownership serves to indicate the trust people have in the State as a regulator of social conflict. In this context, Criminal Procedure Reform offers the possibility to regain compliance with the law through the implementation of a fairer criminal process. If compliance underpins judicial reform as well as the capability of the State to maintain the monopoly of legitimate violence, a reduction in the proportion of people carrying firearms should be one of the expected outputs of judicial reform (see Table 6.8). The data shows that there has been a statistically significant fall in the total proportion of households that have a firearm in Chile. This is true for all socio-economic strata, with sharper rates of decline in the early stages of the reform.

6.5 Public Opinion and Criminal Justice: People Talking About Criminal Justice Institutions The last area of analysis directly addresses the expressive dimension of confidence in justice, i.e. declared opinions about the functioning of criminal justice institutions (see Fig. 6.2). The CCS included in its 2003 and 2005 versions a set of questions related to public confidence in criminal justice. Unfortunately, when moving from a two-year to a yearly survey, there was a reduction in the number of questions. Between 2003 and 2005, large differences exist between public expressive confidence in courts and police forces. More confidence in the more visible parts of the judicial system is a well-documented fact (Hough and Roberts 2004). However,

6.5 Public Opinion and Criminal Justice: People Talking … Table 6.8 Households with firearms 2003–2006

105

2003

2005

2006

I

10.2

6.7*

4.1**

II

7.4

6.6*

6.5**

III

5.8

5.9*

5.2**

IV

8.4

6.7*

6.5**

V

7.6

7.4*

7.7**

CPR stage

Socio-economic strata ABC1

25.9

17.8*

13.4**

C2

15.5

11.5*

12.9**

C3

10.0

9.0*

8.9*

D

5.6

5.5*

4.5**

E

3.1

2.8*

2.6**

CCS 2003–2006 *: Significant difference from 2003 (Z test p < 0.05); **: Significant difference from 2003 and 2005 (Z test p < 0.05)

Fig. 6.2 Confidence in criminal justice actors. CCS 2003–2005. All differences are statistically significant (Z test p < 0.05)

more debate exists around the effect of contacts between police and people on levels of confidence in police (Tyler and Huo 2002; Skogan 2006; Smith 2007). In Fig. 6.2, it is possible to note a decrease in trust in members of the judiciary and an increase in police force trust. In order to interpret this data, Table 6.9 shows the evolution of the different groups during this period. Almost all groups show significant differences between 2003 and 2005 and follow a similar pattern of a decrease of trust in courts. Differences among groups are dissimilar, while differences between gender and age groups are lower in 2005 than in 2003, and socio-economic groups and time of exposure to the CPR seem to show an increase in their differences.

106 Table 6.9 Confidence in courts

6 An Overview of the Effects of the Chilean …

Percentage of population declaring themselves to be highly confident Judges

Supreme court justices

2003

2005

Var

2003

2005

Male

9.9

Female

7.5

Var

8.1

−1.8*

11.6

9.2

−2.4*

7.1

−0.4*

9.1

7.9

−1.2*

Gender

Socio-economic strata ABC1

22.4

14.3

−8.1*

23.8

15.9

−7.9*

C2

10.7

10.1

−0.6*

13.8

11.8

−2.0*

C3

8.6

7.5

−1.1*

11.0

8.9

−2.1*

D

8.1

6.8

−1.3*

9.0

7.7

−1.3*

E

9.2

9.1

0.0

10.0

8.0

−2.0*

15–19

13.0

11.3

−1.7*

10.7

7.4

−3.3*

20–24

8.2

7.8

−0.3*

8.4

8.6

0.2*

25–29

8.8

7.4

−1.4*

11.4

9.4

−2.0*

30–39

6.6

6.5

0.0

8.3

7.8

−0.5*

40–49

8.5

6.8

−1.7*

10.3

7.4

−2.9*

Age group

50–59

7.8

8.1

0.4*

10.4

10.7

0.3*

60 or more

9.4

6.6

−2.8*

12.7

8.8

−4.0*

I

13.3

10.7

−2.5*

14.0

11.1

−2.9*

II

10.5

7.9

−2.6*

11.3

7.8

−3.5*

III

10.1

9.0

−1.1*

11.7

12.8

1.2*

IV

11.1

8.8

−2.3*

12.3

9.5

−2.7*

V

5.6

6.0

0.4*

7.9

7.2

−0.7*

CPR stage

CCS 2003–2005 *: Statistically significant (Z test p < 0.05)

In the case of members of the judiciary, the greatest decline is, in both cases, in the higher socio-economic strata, with an eight-point fall. Although this may reflect a reaction to the limitation of the privileges that the higher social strata had in the previous system, more analysis is needed to test this conclusion. By contrast, confidence in police work increased, phenomenon that is especially evident when disaggregated by the stage of implementation of CPR. The regions that were reformed first (prior to the first sweep of the CCS) show higher increases between 2003 and 2005 than the other two stages. This could be related to the full implementation of the reform, meaning increased operational capacities.

6.5 Public Opinion and Criminal Justice: People Talking … Table 6.10 Confidence in police forces

107

Percentage of population declaring themselves highly confident Carabineros 2003

2005

Policia de Investigaciones Var

2003

2005

Var

Sex Male

33.2

38.4

5.2

31.7

34.8

3.1

Female

32.0

35.9

3.9

29.2

33.0

3.8

Socio-economic strata ABC1

41.4

54.0

12.6

33.5

29.1

−4.4

C2

45.4

51.4

5.9

31.9

37.4

5.5

C3

35.4

41.3

5.9

29.8

35.0

5.2

D

28.6

33.0

4.4

29.9

32.3

2.4

E

30.3

29.7

−0.6

34.1

35.0

0.9

15–19

26.7

27.4

0.7

37.7

37.4

−0.3

20–24

25.7

27.3

1.7

30.4

32.1

1.7

25–29

28.2

32.8

4.6

27.0

33.4

6.4

30–39

28.3

34.0

5.7

28.0

31.3

3.3

40–49

33.4

36.1

2.8

27.2

31.4

4.2

Age group

50–59

36.1

43.8

7.7

29.1

35.7

6.6

60 or over

43.8

49.4

5.6

34.8

36.4

1.6

I

32.8

40.1

7.3

37.0

39.8

2.8

II

29.9

43.8

13.8

32.6

38.3

5.8

III

30.7

46.9

16.2

31.4

40.6

9.2

IV

36.1

37.8

1.7

35.4

37.7

2.2

V

30.6

33.8

3.2

25.0

28.5

3.5

CPR stage

Chile has two national police corps: Carabineros and Policía de investigaciones. Carabineros is a militarised police force focused on crime prevention, while the Policía de investigaciones is a civil police force focused in the investigation of serious crimes. More information about the Chilean police corps can be found in the next chapters CCS 2003–2005 All differences are statistically significant (Z test p < 0.05)

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6 An Overview of the Effects of the Chilean …

Similarly, in the case of Carabineros, confidence increases when analysed by social strata. This could be due to the higher efficiency of Carabineros as a result of the reform, the new command of prosecutors and the establishment of operational goals. Nonetheless, it does not explain the drop of confidence in the higher strata of the investigative police (Table 6.10). The expressive dimension of confidence in justice is, at least at a descriptive level, affected by elements such as social strata, age and gender factors. This makes evident the need to include them in a model for the analysis of judicial reform.

6.6 Conclusions The empirical analysis of the potential societal changes that a large-scale reform of the criminal justice system could create is a challenge for development agencies, governments from developing countries and for all those interested in relations between law and society. In this sense, academics and development agencies have promoted the idea that better protection of property rights will bring an economic take-off in developing countries, using Rostow’s classical concept (1960). Nonetheless, CCS data shows the existence of different behaviours and attitudes towards the criminal justice system between social groups, social class being a key discriminating variable. In other words, while higher strata show a tendency towards an increase in victimisation and reporting, other social strata show the opposite tendency. This is also the case for fear of crime and opinion towards the criminal justice system. The analysis by stages of the implementation of the CPR suggests that it has reduced criminal victimisation. However, it also shows a reduction in reporting rates, making it difficult to correlate the decline in aggregated levels solely with an increase in compliance with the system.

References Cooper, D. 1994. Delincuencia Común en Chile. Santiago de Chile: Lom. Farrall, S., J. Jackson, and E. Gray. 2006. Everyday Emotions and the Fear of Crime: Preliminary Findings from ‘Experience & Expression’, Experience & Expression in the Fear of Crime, Working Paper No. 1. ESRC Grant RES 000 23 1108. Hayward, K., and J. Young. 2007. Cultural Criminology. In The Oxford Handbook of Criminology, 4th ed, eds. M. Maguire, R. Morgan, and R. Reiner. Oxford: Oxford University Press. Hough, M. 1995. Anxiety about Crime: Findings from the 1994 British Crime Survey. Home Office Research Study No. 147. London: Home Office. Hough, M., and J. Roberts. 2004. Confidence in justice: An international review. London: Institute for Criminal Policy Research. Jackson, J. 2004. Experience and expression: Social and cultural significance in the fear of crime. British Journal of Criminology 44: 946–966.

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Jackson, J., and J. Sunshine. 2007. Public confidence in policing: A neo-Durkheimian perspective. British Journal of Criminology 47: 214–233. Lea, J., and J. Young. 1984. What is to Be Done About Law and Order? London: Pluto Press. Rubin, E. 2005. Beyond Camelot: Rethinking Politics and Law for the Modern State. Princeton: Princeton University Press. Skogan, W. 2006. Asymmetry in the impact of encounters with police. Policing and Society 16: 99–126. Smith, D. 2007. New challenges to police legitimacy. In Transformations of Policing, eds. A. Henry, and D. Smith, 273–306. Hampshire: Ashgate. Sutton, R., and S. Farrall. 2005. Gender, socially desirable responding and the fear of crime: Are women really more anxious about crime? British Journal of Criminology 45 (2): 212–224. Tyler, T.R., and Y. Huo. 2002. Trust in the Law: Encouraging Public Cooperation with the Police and Courts. New York: Russell Sage Foundation. Weber, M. 1978. Economy and Society, vol. I. Berkeley: University of California Press.

Chapter 7

Trust in the Criminal Justice System and Judicial Reform: A Pseudo-panel Analysis

The use of attitudinal information for the analysis of judicial reform is a challenging task. This is because it requires fulfilling some minimum conditions: influencing behaviours and being relatively stable over time.

7.1 The Problem Criminal Procedure Reform in Chile transformed courts and police work. In the case of the courts, it trespassed the courts’ functions of investigation and sentencing to the public prosecutors. In the case of the police, it put restrictions on discretionary behaviours and guaranteed the rights of the accused. Chapter 6 outlined the main changes the reform had regarding victimisation and reporting and also pertaining to attitudes towards criminal justice system institutions. The way attitudes and behaviours relate to each other is the focus of this chapter, making use of theoretically informed statistical models.

7.2 Methods This chapter will address these concerns using structural equations modelling (SEM). SEM analyses the relationship between several variables and the mediating effects they have on an expressive or latent variable.

© Springer Nature Switzerland AG 2019 J. C. Oyanedel, Assessing Judicial Reforms in Developing Countries, https://doi.org/10.1007/978-3-030-14249-0_7

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7 Trust in the Criminal Justice System and Judicial Reform …

7.2.1 The Data Using data from the CCS series (2003, 2005 and 2006 sweeps), a pseudo panel was created. This was possible because the three surveys shared a common sampling framework, and some of the households in the sample overlapped during the three rounds. The households were matched on the basis of territorial information (block and household identification) and, within these, persons were matched by an algorithm composed of sex (=), age (+2 or +3) and educational attainment (=, +1+2 or +3). This allowed the creation of a dataset of 2667 cases with information for the three years mentioned. The variables that will be used for the structural equation models are presented in Table 7.1. Bradford (2011) supported the use of direct indicators for the assessment of attitudes towards the criminal justice system, and he suggests that, although limited, they represent a reliable source of information regarding attitudes over time.

7.3 Results The Effect of Trust in the CJS on Victimisation Perceptions

Table 7.1 Variables used for SEM Variable

Question

Range

Trust judges

How much trust do you have in the following institutions? Judges

1–3 (1 = A lot; 3 = Nothing)

Trust police

How much trust do you have in the following institutions? Police (Carabineros)

1–3 (1 = A lot; 3 = Nothing)

Trust CJS

Trust in the criminal justice system (Latent variable)

–

Education

Respondent’s Education

0–9 (0 = Never attended; 9 = University)

Victimisation

Have you or a member of your household been the victim of a crime in the last 12 months?

0–1 (0 = No; 1 = Yes)

CPR time

Months since CPR

SESH

Socio-economic classification (by household characteristics)

1–5 (1 = ABC1 –Highest; 5 = E –Lowest)

Self SES

Self-socio-economic classification

1–5 (1 = ABC1 –Highest; 5 = E –Lowest)

SES

Socio-economic status (Latent variable)

–

CCS 2003–2005

7.3 Results

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Fig. 7.1 Effects of trust in law on victimisation: socio-economic classification CCS 2003. N = 16,289; For visual ease, only standardised coefficients are shown

Standardised coefficients Chi-square=134.935 (2 df) p