12 - A Matter of Legitimacy

Summary

What happens when we no longer respect the courts?

— Jeffrey Rosen (2001)

Introduction

In a well-working system of justice, both basic types of criminal justice error will be small: culpable offenders will be convicted and innocent people will remain free and minimally encumbered by criminal justice agents. In such a system, procedures designed to protect the innocent function as intended and agents of public safety operate effectively. Moreover, when the public perceives those errors to be small, they will be more inclined to support the criminal justice system and trust the police, prosecutors, defense counsel, judges and juries. When they perceive otherwise, the criminal justice system loses public support and crude informal mechanisms for achieving justice tend to fill the void, mechanisms that have been known to violate basic principles of ethics and efficiency. So we have more than ample reason to ensure that criminal justice policies and procedures work effectively to reduce justice errors; doing so is likely to increase both the actual and perceived quality of justice. This is a matter of legitimacy.

In this chapter we shall look at errors of justice as a central aspect of legitimacy in greater detail. The notions of due process legitimacy and crime control legitimacy, discussed in Chapters 2 and 3, are revisited and considered against other important aspects of legitimacy ignored by the inferential and normative framework described in this book.