1. Emotions and the Law: Seeing Criminal Justice as a Defendant or Victim

Criminal justice is typically thought of as institutional, political and legal. Studying criminal law often involves a studious attempt at distancing oneself from the raw human matter that is all too often implicated through criminal justice. By and large, this is the conventional perspective that this course will adopt. Yet it is important to remind ourselves that, before all else, criminal justice is a place where lives are broken and hopes dashed even as, occasionally, some degree of succor and vindication is provided. When the State comes down with full force to enforce the law, it does so with a unique degree of (legitimate) violence. This may explain both literature and, particularly, the movies' infatuation with the trial, a theme that we will return to.

To begin this introduction to criminal justice, therefore, it may serve us well to contemplate the range of emotions that the system, institutional and legal as it is, may trigger: shame, relief, anger, joy, empathy, melancholy, contempt, hatred, pardon, etc. One of the ways of doing this is to take a step away from the professional and institutional roles that the lawyer inhabits to see criminal justice from the perspective of those, typically untrained in the ways of the law, who face it: defendants, victims and witnesses. What does criminal justice look like through their eyes? How might one conceive criminal justice as primarily an encounter between the highly trained professional and the profane interloper?

The role of emotions in criminal justice has become a focus of scholarly inquiry in recent years (see bibliography, infra). For some, emotions are what is wrongly repressed by criminal justice's operation and what the system needs to do a better job of working with. For others, the appeal to emotion by the system is a dangerous departure from the sternness and solemnity of justice. The videos that follow, gleaned from Youtube, are all testimony in their different ways to the rawness of criminal justice. Please note that those are from jurisdictions that allow the presence of cameras in courtrooms, in itself an important aspect of the visibility of justice to society and, indeed, the world at large.

In preparation for this first class, it is also worth reminding ourselves that the criminal justice is not remote but something that has probably in some way or other impacted our lives and those of our communities. Even if we are not directly its subject/object, the ripple effects of trials are such that no one is ever entirely immune from crime or criminal justice.

Preparation:

• Jacobson, Jessica, Gillian Hunter, and Amy Kirby. “Structured Mayhem: Personal Experiences of the Crown Court,” 2015. This is a very useful study, and although it was written about the UK, many of its insights are applicable to criminal justice in Canada.

• PM, Pat Wingert On 2/5/95 at 7:00. “The Return Of Shame.” Newsweek, February 5, 1995.

Further Reading:

General:

• Laville, Sandra, and crime correspondent. “Witnesses Tell of Feeling Abandoned and Uninformed in Criminal Court Cases.” The Guardian, September 30, 2013, sec. Law.

Defendant perspectives:

• • Casper, Jonathan D. “Having Their Day in Court: Defendant Evaluations of the Fairness of Their Treatment.” Law and Society Review, 1978, 237–251.

  • Edwards, Susan S M. Women on trial: a study of the female suspect, defendant, and offender in the criminal law and criminal justice system (Manchester University Press, 1984).

  • Ericson, Richard V & Patricia M Baranek. The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (University of Toronto Press, 1982).

  • Tyler, Tom R. “The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience” (1984) 18:1 Law & Society Review 51.

• “An Emotional Defense: Guiding Your Defendant Through Employment Litigation.” Accessed September 19, 2016.

  • Frazer, M. Somjen. “The Impact of the Community Court Model on Defendant Perceptions of Fairness.” New York: Center for Court Innovation. Retrieved on October 12 (2006): 2009.

  • Petrucci, Carrie J. “Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court That Utilizes Therapeutic Jurisprudence,” 2002. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263908.

  • Podkopacz, Marcy R., Deborah A. Eckberg, and Keri Zehm. “Drug Court Defendant Experience and Fairness Study.” Unpublished Manuscript. Fourth Judicial District Court of Minnesota, 2004. http://mncourts.gov/mncourtsgov/media/assets/documents/4/reports/Drug_Court_Fairness_Report(2004).pdf.

  • Tyler, Tom R. “The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience.” Law and Society Review, 1984, 51–74.

Victim perspectives:

• Lurigio, Arthur J. “Are all Victims Alike? The Adverse, Generalized, and Differential Impact of Crime” (1987) 33:4 Crime & Delinquency 452.

• “Trauma of Victimization.” Accessed September 19, 2016

• “A Victim’s Guide to Being a Witness and Testifying in Court.” Victims of Violence. Accessed September 19, 2016

• Campbell, Rebecca. “The Community Response to Rape: Victims’ Experiences with the Legal, Medical, and Mental Health Systems.” American Journal of Community Psychology 26, no. 3 (1998): 355–379.

  • Finn, Mary A. “Effects of Victims’ Experiences with Prosecutors on Victim Empowerment and Re-Occurrence of Intimate Partner Violence, Final Report.” Atlanta, GA: Georgia State University, 2003. https://www.ncjrs.gov/App/abstractdb/AbstractDBDetails.aspx?id=202983.

  • Goodman, Gail S., Elizabeth Pyle Taub, David PH Jones, Patricia England, Linda K. Port, Leslie Rudy, Lydia Prado, John EB Myers, and Gary B. Melton. “Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims.” Monographs of the Society for Research in Child Development, 1992, i–159.

  • Morgan, M., L. Coombes, E. Te Hiwi, and S. McGray. “Accounting for Safety: A Sample of Women Victims’ Experiences of Safety through the Waitakere Family Violence Court.” Palmerston North: Massey University, 2007.

  • Parsons, Jim, and Tiffany Bergin. “The Impact of Criminal Justice Involvement on Victims’ Mental Health.” Journal of Traumatic Stress 23, no. 2 (2010): 182–188.

• Shapland, Joanna, Jon Willmore, and Peter Duff. Victims in the Criminal Justice System. Gower Aldershot, 1985. https://www.ncjrs.gov/App/abstractdb/AbstractDBDetails.aspx?id=101826.

Social perspectives:

• • Henderson, Martha L et al. “The impact of race on perceptions of criminal injustice” (1997) 25:6 Journal of Criminal Justice 447. Pogrebin, Mark. Qualitative Approaches to Criminal Justice: Perspectives from the Field (SAGE, 2003).

  • Lochner, Lance. “Individual Perceptions of the Criminal Justice System” (2007) 97:1 The American Economic Review 444.

Emotions and criminal justice:

• Karstedt, Susanne. “Emotions and Criminal Justice.” Theoretical Criminology 6, no. 3 (August 1, 2002): 299–317.

• Mackie, J. L. “Morality and the Retributive Emotions.” In Why Punish? How Much?: A Reader on Punishment, edited by Michael H. Tonry. Oxford University Press, 2011.

• Karstedt, Susanne, Ian Loader, and Heather Strang. Emotions, Crime and Justice. Bloomsbury Publishing, 2011.

• Freiberg, Arie. “Affective Versus Effective Justice Instrumentalism and Emotionalism in Criminal Justice.” Punishment & Society 3, no. 2 (April 1, 2001): 265–78.

• Goodrum, Sarah, and Mark C. Stafford. “The Management of Emotions in the Criminal Justice System.” Sociological Focus 36, no. 3 (August 1, 2003): 179–96.

  • Bandes, Susan. The Passions of Law. NYU Press, 1999.

• James Q. Whitman, "What is Wrong with Inflicting Shame Sanctions?" (1998) 107 Yale LJ (Faculty Scholarship Series) 1055