In this third edition of my series of articles discussing Criminological concepts in a Socialist context, I am looking at what a fair trial would be like in a Socialist society. What does a fair trial consist of today, who makes the decisions of guilt or innocence and how would that be different under socialism? Is the justice system just, and if not, how would a Socialist justice system do better?
Roles within the justice system
To start with lets explore the different roles within the justice system today. The police‘s role is to investigate alleged offences by following all reasonable lines of enquiry to make sure the wrong person is not charged. A prosecution is the act of charging someone with a breach of the criminal law. A prosecutor is a person presenting the case in court, and must prove beyond reasonable doubt that the accused has committed a crime (Bloom, 2019, p. 54). The role of the court is to test state accusations of guilt and asks the tribunal of fact (the jury): ‘Are you sure of guilt?’ (Secret Barrister, 2018, pp. 155-6). The defence are the defendant (before they are charged they are called the ‘accused’ or the ‘suspect’) and their lawyers who will represent them in court (Bloom, 2019, p.57). The witnesses are those giving evidence in court and can include both the defendant and victim. The judge decides which laws to apply and how the jury should be directed to apply them, for example the judge will decide what evidence the jury is allowed to hear (Bloom, 2019, p. 59).
In a Socialist society the different roles will change, for instance the police will be community-led and will slowly turn its attention to threats to the socialist system; pro-capitalist forces trying to undermine the basis of socialism, corruption and cronyism. Off course it might take generations before other crime as we know it is eradicated or at least significantly reduced. As for the prosecution, this should be possible to anyone, not just the state and also the judge and jury might change to justice committees.
Elements of a fair trial
Within the Capitalist justice system there are two basic elements of a fair trial:
- The judge and jury are impartial
- Both sides of the dispute are heard, as cited in Bloom (2019a, p. 55).
Although the right to be afforded a lawyer to UK citizens who are accused of having committed a crime exists since 1949, austerity measures and severe cuts to the Department of Justice have meant that this right has been hollowed out (Bloom, 2019, p. 58). Between 2010 and 2023 the budget for the Department of Justice has decreased by 48% (Falconer, 2018) as cited in Bloom (2019, p. 58). On top of that the Covid-19 pandemic has caused a backlog of more than 457.000 court cases awaiting trial, which is a 100.000 more than it was before the pandemic struck in the UK. As the crown court backlog grew, so did the number of prisoners on remand awaiting a trial. They now represent more than 15% of the prison population (Casciani, 2021). It can be argued that legal aid cuts reduce the possibility of a fair trial and increase the risk of miscarriages of justice. And let’s be honest, that is putting it mildly!
The elements of a fair trial in a socialist system might still include the above points but I can imagine that accountability to the whole of society would take centre part. This might be in the form of justice committees for both parties or instead of a judge. The whole point of socialism is that the working class collectively decide democratically how this legal system would look like. And off course that all starts with making appropriate laws. If the law is much more focussed on serving the interest of the working class, instead of the ruling class the tables will be turned but this does not automatically mean that justice will become more equal or just. It will mean that it is in the hands of you and me to decide.
I would also like to highlight the fact that the jury nowadays is cloaked in secrecy in the UK. They are only allowed to give a ‘guilty’ or ‘not guilty’ verdict, but can’t comment on the reasoning or process behind that decision. I think in a socialist society that can never be allowed. Transparency and accountability towards the working class is paramount, so that part needs to change too.
If I imagine a socialist world I think the justice system would be transformed through the methods of Leon Trotsky’s Transitional Programme. As for all other parts of society, the working class would form committees, through debate and discussion decisions would be made collectively on how the new justice system would look like, and then send representatives to congress who will vote on their behalf. As I said before, those representatives would be subject to immediate recall and mandatory reselection, so at all times they will be accountable to the working class. Any state official will be subjected to that and will only be rewarded an average worker’s wage. Mind you, that wage would be significantly higher than you can probably imagine today.
So how would it look like? To begin with the whole aim should be that equal and fair justice can be done to anyone, that nobody is above the law, and that every single part of the system is directly accountable to the working class as said above. At no point should it be possible for any participant within the justice system to gain any kind of advantage above the other party in the case. It goes without saying that the law should be written, enforced, tested and applied by the working class, through democratic processes like everything else has.
Another aspect is that I think sentencing has to be proven to be beneficial to the whole of society, so rehabilitation and restorative justice has to be paramount in equal measure to the benefit of both the victim and the perpetrator but above all society as a whole. I think it is needed that answers to this incredible difficult and complex problem are researched and found. I think that in that process criminologists and other independent specialists and experts can play a vital role, as they should have an objective view as academics.
Off course in a Socialist society all parts of the justice system would be nationalised and no aspect would ever be run for profit or privately owned. Big investments need to be made to transform it and make it accessible to anyone and not, as it is now only the State and rich and powerful people are able to afford to prosecute a case. Lawyers and barristers will be freely available to anyone who needs legal assistance, they will be independent and paid an average worker’s wage.
I think to start with the biggest excesses of miscarriages of justice and evasion of justice has to be dealt with. The reason the current system allows this to happen is the entanglement of corporate interests and political power which are all in the hands of a few people. So opening the justice system up to being accountable to the working class instead of a few judges and a capitalist state effectively run by big corporations will already change the outcome dramatically I suspect. Also the fact that in a Socialist system the biggest companies and banks will be nationalised will mean that accountability will change from private hands to public hands. Each individual in society will have to be accountable to the whole of society. So when a group of people together act in a harmful way, they all have to account for that to the whole of society. At the moment under capitalism this is very difficult to pursue. For instance in the case of the Grenfell Tower Fire and the aftermath with a 100.000 buildings still clad in flammable material it seems near impossible to bring all the different guilty parties to justice. In a Socialist society there would be a big independent public inquiry run by a community committee, but I think such disasters wouldn’t take place as there would be stringent health and safety laws and regulations, and high rises like Grenfell would be replaced with safe, spacious, quality public housing.
In the process of the transformation of society towards socialism, the roles within a court trial might change dramatically to reflect accountability to the whole of society, which requires much more transparency and impartiality than the justice system has now. The fairness of trial and protection against miscarriages of justice has been seriously eroded by decades of austerity and cuts to public services like the Department of Justice. In a socialist society accountability to the whole of society would take centre stage, as well as equality before the law, fairness and the possibility for rehabilitation for the offender and recovery for the victim. The long-term outcome for society has to be positive in deciding the sentence. The whole justice system would be a public service, with no aspect of it in private hands, and free on the point of use to anyone. Many crimes will cease to exist as poverty, inequality, competition between people and the race for profit will be eradicated.
Bloom, T. (2019) ‘The prosecution on trial’ in Downes, J., Kent, G., Mooney, G., Nightingale, A., and Scott, D. (eds.) Introduction to Criminology 2, Milton Keynes, The Open University, pp. 51-74).
Casciani, D. (2021) ‘Covid and the courts: ‘Grave concerns’ for justice, warn watchdogs’ [Online] Available at: https://www.bbc.co.uk/news/uk-55712106 (Accessed on 01/02/2021).