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Multiculturalism in the criminal justice system in relation to different demographics

Personal use only; commercial use is strictly prohibited for details see Privacy Policy and Legal Notice. This diversity can be the result of different historical and social processes and might affect the uniformity and efficiency of criminal justice systems.

Colonization of indigenous populations that started in the 15th century later European colonization of Africa and migration flows following the Second World War have contributed to this diversity in different ways. The growing importance acquired by culture in the criminal law domain went hand in hand with the attention received by it both in the human rights field especially linked to minority rights and in the field of sociological and criminological theories. The way in which criminal justice systems deal with such cases, and more in general with cultural factors, varies greatly.

Criminal proceedings are not the only setting to deal with culture and crime. More recently, the development of alternative dispute resolution mechanisms and restorative justice both within formal and informal community settings have given an additional option to take culture into account in the resolution of disputes in terms of procedures used and normativities in play.

Concerns exist with regard to the substantive and procedural rights of participants to these programs.

However, these alternatives could represent a way to allow a certain degree of legal pluralism and facilitate access to justice for minority groups. During the course of the 20th century, a myriad of definitions and approaches to culture characterized different trends in social and cultural anthropology and many other disciplines. A great deal of the discussion on culture, developed in the second half of the 1900s, revolves around the quarrel between those who describe culture as something static, monolithic, well-defined, and those who underline the need for looking at it as a practice, a process in constant transformation exposed to both external and internal challenges.

In the last few decades, an increasing number of social and cultural anthropologists have denounced the risk that conceiving culture as static and homogeneous brings in terms of its compatibility with human rights. According to these scholars, the only way to reconcile culture and cultural diversity with human rights is to recognize that cultures are often hybrid, complex, and in a process of constant transformation Parolari, 2016.

Even if certain aspects of a culture endure over time and are transmitted from one generation to another, it is also true that cultures themselves are exposed to a variety of factors, including other cultures that have an impact on their preservation and transformation. The same is true for migrants belonging to second or third generations, who are exposed to a variety of cultures and often contribute to change them from within. Admitting that cultures are heterogeneous and not always uniform also means recognizing the existence of a plurality of voices and positions with regard to certain specific cultural practices.

The different attitudes individuals might have toward a given tradition might be due to a variety of factors, such as gender, age, individual beliefs, level of exposure to other cultures, and many other structural factors including, of course, socioeconomic ones van Broeck, 2001. Individual identities can be described by a plurality of collective narratives and in most cases cannot be reduced to defined ethnic, religious, cultural, or linguistic boundaries Benhabib, 2002.

Undisputed is, however, that culture affects, to a certain extent, individual perceptions and behaviors. Conrad Philipp Kottak defines enculturation as: The individual can become an accepted member and fulfil the needed functions and roles of the group. Most importantly the individual knows and establishes a context of boundaries and accepted behaviour that dictates what is acceptable and not acceptable within the framework of that society.

It teaches individuals their role within society as well as what is accepted behaviour within that society and lifestyle. Cultural Diversity in Contemporary Societies As mentioned in the previous paragraph, contemporary societies are culturally diverse.

Among these processes, those that mostly influenced the pluralization of our societies in the last few centuries, three are worth mentioning: Indigenous Peoples Colonial and neocolonial processes that took place in the last six centuries in countries such as Canada, the United States, Australia, New Zealand, and Latin American states strongly affected the development of indigenous populations living in these territories.

Upon their arrival, European settlers did not only take control of the land and natural resources but also of educational, cultural, religious, and justice institutions. This resulted in the partial destruction of indigenous culture, values, social and political organization, and brought to the socioeconomic marginalization of indigenous groups within new colonial societies.

One of the areas in which this marginalization is more evident is that of criminal justice.

  • Other reasons have contributed to associate culture with crime; among those, two are worth mentioning;
  • The justification brought forward by the accused is linked to a different conception of parental authority and the role of the pater familias, a different code of conduct for women, especially with regard to the relationship between men and women;
  • During the 20th century, many international instruments started recognizing the value of cultural features and protecting them, at first in the form of individual rights, later on also under the category of group collective rights;
  • In many former colonies, the partition between official legislation enforced by state institutions and customary norms adopted by informal courts can still be found today and usually reflects a division between urban and rural areas;
  • Subcultural theories explain crime as a collective phenomenon, resulting from the adherence to values and norms, which are different from those of the dominant society;
  • If, however, the rule infringed coincides with a criminal norm in force in the dominant society, this deviant behavior amounts to crime Sellin, 1938.

The overrepresentation of indigenous populations within the criminal justice system, with regard to both victims and offenders, is a common trait of all settler colonial states. The reasons for such an overrepresentation are many and go from socioeconomic conditions, unemployment, and widespread substance abuse, to racism and discriminatory attitudes of criminal justice authorities in policing, charging, judging, and sentencing indigenous people.

Little access to justice and legal aid also contribute to increased levels of victimization and to higher incarceration rates. It should not multiculturalism in the criminal justice system in relation to different demographics, therefore, that indigenous claims for self-determination often go through requests for autonomy within the criminal justice sphere. In order to accommodate these claims and to reduce the overrepresentation of indigenous people in prison, several countries have recognized indigenous traditional programs as an alternative or a supplement to the formal criminal justice system see, among others, Canada, the United States, Australia, and New Zealand.

Ideas of law and justice within indigenous groups differ from colonial ones under several aspects. Concerns exist with regard to guarantees offered to vulnerable subjects, especially women and children.

The use of traditional programs for crimes such as domestic and sexual violence is regarded with high skepticism. Criticisms are related to the concern that communities might condone harmful practices and undermine the rights of victims. Despite these risks, however, these programs are also seen as a way to reaffirm indigenous culture and tradition, and the culturally sensitive procedures that they entail are practices to which the community is accustomed and are therefore seen by many as capable of empowering victims and of facilitating their access to justice Jahan, 2008.

Colonialism in Africa European colonization of Africa especially sub-Saharan Africa started at the end of the 18th century. Law was the instrument through which colonial powers imposed their control on colonized territories and sought to transform these societies and impose a new culture.

European colonizers brought with them their legal systems and imposed values and rules on the colonized countries initially through existing institutions. With the increase of colonial power, a set of state courts was developed in order to allow the enforcement of Western laws for Europeans. African courts, especially in rural areas, were instead charged with the enforcement of indigenous precolonial law.

Crime, Diversity, Culture, and Cultural Defense

This resulted in the creation of a dual system, one for the colonizers and one for the colonized, and it marked the beginning of a policy of legal pluralism that in many cases survives until now. Postcolonial countries are still struggling to reconcile this dual system and to decide which law has to be applied in which courts. In many former colonies, the partition between official legislation enforced by state institutions and customary norms adopted by informal courts can still be found today and usually reflects a division between urban and rural areas.

Here, state institutions are often weak or nonexistent, and the organization of the population e. This is not only the case in colonized territories but also in post-conflict societies where both accountability and reconciliation are needed.

Recently, governmental and non-governmental organizations have promoted the development of alternative and informal mechanisms as part of a grassroots and more informal approach to justice in order to facilitate access to justice, conciliation, and local control Jahan, 2008 ; Merry, 1991 ; Sullo, 2016.

The situation is even more complicated in countries, such as Togo or Uganda, in which several colonial administrations German, French, British, etc.

Here the postcolonial scenario is even more fragmented. State law consists of several layers of different Western legislation, which contributed to shape, and nowadays interact with the customary law of the colonized territory. Immigration After the Second World War A third factor of cultural diversity in contemporary societies is the phenomenon of immigration.

Contemporary international migration is unprecedented to what concerns its scale, character, and intensity Orgad, 2015. On the global level, the number of migrants has increased steadily in the last decades and has doubled or even tripled in developed countries such as the United States and Europe. The so-called European migration crisis has led to an escalation in the increase of third country nationals in Europe, which became the destination for millions of migrants, refugees, and asylum seekers arriving to Southern European countries through the Mediterranean and the Balkan routes.

Eurostat estimates that as of January 1, 2016, the non-EU citizens living in the 28 European states were 20. Also, the character of migration somehow changed in the last century.

  1. Exemptions from criminal law provisions for minority groups have been discussed and sometimes granted in the name of freedom of religion and belief and in the name of tolerance.
  2. Law was the instrument through which colonial powers imposed their control on colonized territories and sought to transform these societies and impose a new culture.
  3. Also, the character of migration somehow changed in the last century. This is not only the case in colonized territories but also in post-conflict societies where both accountability and reconciliation are needed.

During the 19th and the beginning of the 20th centuries, migration flows were mainly restricted to the Western world typically, although not only, from Europe to North America and consisted of labor migrants who moved to another country usually for a limited period of time Orgad, 2015. Former colonial powers, for instance France and the United Kingdom, started receiving immigrants from their previous colonies, while Northern European countries recruited labor forces from Southern Europe and later on Eastern Europe.

Next to more traditional labor migrants, both asylum seeking and family reunification play a major role in this process. The intensity of contemporary migration is also remarkable. The pace at which migrants are arriving in Europe is rapidly changing demographic trends in these countries. Western population and the total fertility rate in Western countries are declining, and in many European cities the growth of the migrant population is faster than that of the non-migrant population Orgad, 2015.

Nation-states used to rely on a strong concept of sovereignty exercised through the instrument of citizenship, the only relevant criterion of affiliation. All other identity collective dimensions, such as ethnicity or religion, were meant to fade in front of a universal idea of the right-bearing individual. The traditional conception of citizenship, based on the belonging to a nation-state was juxtaposed to a new idea of multiple belonging and collective identity.

The perceived threat to Western liberal values and the revival of national identities have led to a retreat from multiculturalism and to the rise of nationalist movements Algan et al. Clashes between minority and majority groups are framed in human rights terms and become particularly heated in the area of criminal law.

  • If, however, the rule infringed coincides with a criminal norm in force in the dominant society, this deviant behavior amounts to crime Sellin, 1938;
  • When the honor of a group is breached or is perceived to have been breached and shame is brought on that group, a reaction is needed in order to re-establish the status quo ante;
  • A great deal of the discussion on culture, developed in the second half of the 1900s, revolves around the quarrel between those who describe culture as something static, monolithic, well-defined, and those who underline the need for looking at it as a practice, a process in constant transformation exposed to both external and internal challenges;
  • The doctrinal debate has engaged both political philosophers and criminal lawyers who have brought reasons in support and against the use of culture within criminal proceedings;
  • Nation-states used to rely on a strong concept of sovereignty exercised through the instrument of citizenship, the only relevant criterion of affiliation.

Violence against women and children such as female genital mutilations, forced marriages, sexual and domestic violence, etc. The plurality of normativities to which members of minority groups are subjected is perceived to threaten an ideal universal conception of rights and principles such as equality, freedom, justice, and autonomy, while the claims for jurisdictional autonomy coming from minority groups challenge the value-imposing function of criminal law and fundamental principles such as the rule of law and the monopoly of the state over the use of violence.

The Relationship Between Culture and Crime In some ways, all crime is related to or influenced by culture. However, in the last few years, the attention of the international community and of Western liberal democracies has increasingly focused on the relationship between crime and culture and especially of certain cultural traditions. In the last few decades Europe has witnessed the arrival of flows of Muslim immigrants that have revitalized the debate on religion.

While in the past, religiosity was connected to the idea of law-abiding citizens, nowadays religion, especially Islam, is often associated with violence. In this discourse religion and culture have been used interchangeably, and the latter has often provided an alternative to avoid discussing sensitive issues such as freedom of religion.

Multiculturalism and the criminal justice system

Other reasons have contributed to associate culture with crime; among those, two are worth mentioning: Human Rights and the Right to Culture The place occupied by culture within the human rights discourse is highly debated. While initially the recognition of culture and cultural differences was seen as an obstacle for the pursuit multiculturalism in the criminal justice system in relation to different demographics universal individual human rights, later on the supporters of cultural relativism reversed this opposition.

During the 20th century, many international instruments started recognizing the value of cultural features and protecting them, at first in the form of individual rights, later on also under the category of group collective rights. Today, the right to culture is enshrined in many international human rights documents see, among others, article 27 of the Universal Declaration of Human Rights; article 15 of the International Covenant on Economic, Social and Cultural Rights; and article 27 of the International Covenant on Civil and Political Rights.

It underlines the value of cultural diversity and cultural pluralism for democratic societies and fosters the implementation of cultural rights as an integral part of human rights. Of course, being the right to culture and to cultural diversity fully recognized as a fundamental right, it is also subject to the limits, which derive from the universal, indivisible, and interdependent character of human rights.

Criminological Theories Investigating the Role of Culture in Crime During the first half of the 20th century, the concept of culture became central also to another field of study, that of sociology and, in particular, of criminology. The interaction between cultural and criminal practices was at the heart of several criminological theories, which developed between the 1930s and the 1960s, such as the culture conflict theory and subcultural theories.

These theories saw crime as a collective behavior, resulting from the adherence to a sub cultural group, different from the dominant one. Drawing from cultural anthropology studies, Sellin defines conduct norms as a product of social life, aimed at protecting the social values of a group.

It might happen that one specific life situation is simultaneously regulated by a plurality of conduct norms deriving from the different social groups of which an individual is a member and that these norms fail to agree with each other. If, however, the rule infringed coincides with a criminal norm in force in the dominant society, this deviant behavior amounts to crime Sellin, 1938.

Sellin further distinguishes between what he calls primary and secondary conflicts. Primary conflicts occur when the norms of two different cultures or cultural codes clash.

They may arise when two different codes regulate two contiguous areas; when the law of one group is extended to the territory of another group as in the case of indigenous peoples or colonized territories ; or, finally, when members of one cultural group migrate to another group. Secondary conflicts characterize, among others, the behavior of second-generation migrants. These individuals are often caught between two or more cultures, and their behavior is therefore influenced by different normative orders.

While receiving a certain education within their families, they are at least partially acculturated with the norms of the host society. The Chicago School and Subcultural Theories Subcultural theories were developed in the context of the Chicago School of Sociology, which since the beginning of the 1900s focused on the study of urban sociology, in particular of immigration and minority communities. Subcultural theories explain crime as a collective phenomenon, resulting from the adherence to values and norms, which are different from those of the dominant society.

In situations of marginalization from the mainstream society, individuals bond together and develop their own norms, beliefs, and symbols, creating new identities and ways of life.