ISSN 1062-7421
Vol. 12 No. 4 (April 2002) pp. 225-228.
CONTRASTING CRIMINAL JUSTICE: GETTING FROM HERE TO THERE by David Nelken (Editor). Burlington, VT: Ashgate
Publishing Co., 2000. 306 pp. Cloth $74.95. ISBN: 1-8401-4469-6.
Reviewed by Fran Buntman, Administration of Justice, Department of Public and International Affairs, George Mason
University.
CONTRASTING CRIMINAL JUSTICE is an edited volume that compares criminal justice issues between and among a number
of countries. With the exception
of one chapter on Trinidad and Tobago, all the case studies are from wealthy "First World" democracies
in the Northern Hemisphere. The book seeks to emphasize methodology as much as substance and examine the "interplay"
between the two. David Nelken, the editor, considers most comparative criminal justice as limited by the faulty
assumption that "the cultural object 'criminal justice' [and 'law'] we know exists elsewhere" (p. 4).
One illustration of this point is in comparisons between civil and common law traditions, although the authors
also make clear that neither civil nor common law are homogenous and unchanging canons. More broadly the book
aims "to provide examples of how to make progress in sociologically informed research projects into comparative
criminal justice, not to give a comprehensive account of legal institutions, rules and procedures in the countries
concerned..." (p. 10).
A separate chapter, also by Nelken, summarizes the contributors' chapters and examines how research methods and
research findings inform each other in light of "the central epistemological and methodological problem of
comparative research-how we can ever know another culture" (p. 23). In contrast two Nelken's other two valuable
chapters, I found this chapter somewhat clumsy and contrived. Readers may want to read this chapter last, as a
summary and conclusion, rather than as an introductory overview.
This book's attention to methodology is, for me, both a strength and a weakness. Primarily using qualitative methodologies,
the authors seek to interrogate the very project of comparative research. In the best chapters, the book succeeds,
offering detailed, valuable, and insightful perspectives on everything from epistemological to practical problems
of engaging in and practicing comparative research. However, in some chapters this methodological emphasis is
overstated, and there was an inadequate substantive contribution. In some contributions, the focus on method and
especially the problems of authorial immersion in their own cultural contexts
borders on self-indulgence. Nevertheless, this fault is not too great to undermine the book's contribution as
a whole, which is worthy in a number of respects.
I consider the most valuable chapters to be those that explain the relationships and mutual influences of political,
legal, and criminal justice cultures among each other. This appreciation may well reflect my bias as a political
scientist. However, for those who share this interest, I also recommend
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Robert Weiss, COMPARING PRISON SYSTEMS (1998). The first of these chapters is "Legal cultures, political
cultures and procedural traditions: towards a comparative interpretation of covert and proactive policing in England
and Wales and The Netherlands" by Chrisje Brants and Stewart Field. The authors document the rise of covert
and proactive policing, explained as the targeting of people and/or 'risk groups' "who are expected to commit
future crimes" by means of secret information collection techniques such as informers and electronic surveillance.
(Proactive and covert policing do not preclude the use of reactive and/or overt policing and may or may not include
prosecution as an end goal.) Among the problems raised by secret and anticipatory policing are the difficulties
such practices pose for the rights of suspects and defendants; by definition, the "defense arrives too late
on the scene" (p. 86). Brants and Field chart the historical emergence of
covert and proactive policing in the context of the respective political cultures, thus pointing to relationships
between political cultures (including the media) and legal cultures, both concepts which they discuss by drawing
heavily on the work of Raymond Williams, David Garland, and Stuart Hall.
Another chapter that emphasizes the relationship among the political, legal, and criminal justice cultures is David
Johnson's study of "Prosecutor Culture in Japan and the USA." Johnson uses a narrower definition of
legal culture than do Brants and Field. Nevertheless, his chapter shares the same fine feature of being able to
explain the cultural, legal, and institutional contexts for certain features criminal justice practices, such as
why Japanese prosecutors are more likely and American prosecutors less likely to decline to prosecute. Johnson
also provides many insights into the issues comparative research illuminates. "That Japanese prosecutors remain
committed to a rehabilitative ideal is less remarkable than the extent to which American prosecutors appear to
have foresworn it" (p. 188), is an instance of
this comparative advantage.
The other two chapters which emphasize the interplay among political, legal, and criminal justice cultures are
Adam Crawford's "Contrasts in victim-offender mediation and appeals to community in France and England"
and David Nelken's "Telling difference: of crime and criminal justice in Italy." One concern these two
chapters share is exploring differing national understandings of "community." Both authors usefully
locate their discussion of what community means in light of national and regional traditions in political philosophy
and experience of the state and citizenry. Community is Crawford's chief focus, whereas it is only one concern
among many for Nelken. Crawford shows how the varying associations of "community" have different implications
for restorative justice, victim-offender mediation, and related practices in France and England.
Nelken also discusses community, but his chief focus is to understand aspects of Italian criminal justice in light
of other, comparative perspectives. The first half of his chapter focuses on method qua method and the standpoint
of the researcher. Unlike some of the other methodology-heavy chapters, however, his is a pleasure to read and
comes across as relevant to research findings rather than primarily being academic navel gazing. The second half
of the chapter begins from Nelken's premise that many Anglo-American assumptions about criminal justice, assumptions
based on personal and professional socialization, "are currently striving for hegemonic influence" (p.
246). Having lived in Italy for a decade,
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he then considers Italian criminal justice by asking "what it is about Italy which renders these [Anglo-American]
expectations problematic and which helps us to reflect on their source and meaning." His study then ranges
from interpreting crime statistics to the different political salience of, on the one hand, 'ordinary' crime (e.g.
street crime) and, on the other hand, crime that appears to threaten social and political structures such as political
corruption, terrorism, and organized crime. Nelken provides an excellent comparative analysis as to why 'ordinary
crime' caused "moral panics" in the U. S. and U. K., but had little effect on Italian politics.
Marie-Andre Bertrand's "Comparing women's prisons: epistemological and methodological issues" struck
me as overly self-referential. Furthermore, there appeared to be inconsistencies in the text. Bertrand notes that
the researchers only studied institutions receiving sentenced prisoners and, within the United States, only studied
prisons in the state of Minnesota (pp. 124, 125). However, a table listing sites studies includes, among others,
the Allegheny County Jail (Pittsburgh), which houses inmates awaiting trial, and prisons in other U. S. states.
Not withstanding these concerns, the chapter was valuable in emphasizing at least three points. First, hypotheses
and/or assumptions based on generalizations and 'received wisdom' need to be scrutinized in the face of actual
empirical realities. For example,
researchers anticipated finding U. S. prisons to be worse for women than those in Europe and Canada. However, among
the cases studied, "the only complete exception" to the hypothesis that, in women's penal institutions,
work and training programs are obsolete and in insufficient supply, was in Shakopee, Minnesota (p. 126). Second,
comparative research is or can be helpful in assessing and deconstructing data and generalizations. The author
shows that relatively low national rates of incarceration may hide relatively high rates of women's incarceration.
Thus, for example, although Canada has almost a fifth of the U. S. rate of national imprisonment, almost 50 percent
more women, proportionately, are imprisoned by Canada than the U. S. Third, research may and does change researchers'
opinions, as indeed it should. Bertrand and her research team's "faith" in prisons, which allowed children
to remain with their mothers, was "shaken" when they saw how this approach can establish damaging prison
hierarchies (pp. 128, 129).
My assessment of Maureen Cain's "Through other eyes: on the limitations and value of Western criminology for
teaching and practice in Trinidad and Tobago" is also mixed. One strength was the very country of study and
the attention Cain paid to and its ambiguous status as neither of the "West" nor "East," nor
of the "South" or "North," at least as is conventionally understood by the meanings ascribed
to these geo-political locations and the economic and racial referents they imply. Another valuable contribution
this chapter makes is to challenge apparent "universal truths" of criminology, such as that young men
are the most criminogenic sector of the population. I also really appreciated Cain's insightful point that policing
tends to emerge as an object of concern in polities "where the police have long been an
object of political struggle" (p. 274). Nevertheless, this chapter was repetitive, gave too much detail at
many points, and was overly self-consciousness methodologically.
Method and authorial self-awareness also overwhelmed substance in Jacqueline Hodgson's chapter. Her research project
sought "to understand the role of pre-trial
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actors in the investigation and prosecution of criminal cases in France" (p. 145). Readers learn little about
this subject, however, as most of the chapter is devoted to considering the comparative method itself, as captured
in the chapter title, "Comparing legal cultures: the comparativist as participant observer."
The book's least useful chapter was "Protecting the innocent through criminal justice: a case study from Spain,
virtually compared to Germany and Japan," by Johannes Feest and Masayuki Murayama. The chapter recounts the
treatment of a real criminal case in Spain. It describes how the case proceeded and what explained its outcome
in light of Spain's criminal justice and legal system. The authors then consider how that same case would have
been dealt with in both Germany and Japan. Although such a method may be useful in teaching, I'm not persuaded
that it really constitutes rigorous research, at least not as carried out by these authors. For example, critical
material evidence likely to prove the defendant's innocence, which was used by Spanish courts in the successful
appeal, was not even mentioned in either the German or Japanese "virtual" cases. Perhaps the greatest
value of the authors' approach is to highlight differences among countries that
have a civil law tradition, a theme that emerged in many of the chapters.
There were other implicit and explicit themes throughout the book. Some have been mentioned above, such as how
concepts of the state shape understandings of crime and the law. Another was the meaning, limits, and operation
of discretion by actors in the criminal justice system. And a third was the sadly consistent theme of minorities,
aliens, foreigners and others considered outsiders to be subject to disproportionate attention from and punitive
measures by most countries' criminal justice systems, a point also made by Vivien Stern in her A SIN AGAINST THE
FUTURE (1998), among others.
Another valuable and refreshing feature of the book was its consideration of the United States as "just another"
comparative case. Too often the U. S. is treated as sui generis, and either beyond or outside of comparison. (Arguably,
all countries are at once sui generis and generic units available for study.) Indeed, if there is one country
that serves as both an implicit and explicit point of reference, it is the United Kingdom, and specifically England
and Wales, underscoring the book's concern with importance of authors' awareness of their points of reference and
departure.
REFERENCES:
Stern, Vivien. 1998. A SIN AGAINST THE FUTURE: IMPRISONMENT IN THE WORLD. Boston: Northeastern University Press,
1998.
Weiss, Robert P., ed. 1998. COMPARING PRISON SYSTEMS TOWARD A COMPARATIVE & INTERNATIONAL PENOLOGY. Toronto:
Hardwood Academic Publisher/University of Toronto Press.
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Copyright 2002 by the author, Fran Buntman.