법질서정치(Law and Order Politics)와 형사사법의 왜곡

Abstract

When the government - mass media - political party coalition campaigns for ‘Law and Order’, criminal justice becomes a political issue. Criminal justice gets tough on crime, which actually means tough on criminals. With the highest wave of incarceration, punitive discourse and subsequent penal policies increasingly surround the issues of crime and punishment. The development of Law and Order movement can be traced to a growing crisis of political legitimacy in the USA in the 1960s. From the 1980s, the politics of Law and Order could be observed in most Western European countries. England has also drifted into a Law and Order society, which has its roots in the structural recession of economy, and social climate that prefers severe punishment as a remedy for crime. The politics of Law and Order has been shaped by the responses to the continuous rise in crime rates and to political unrest of the time. Local governments, interest groups in the criminal justice field and the mass media are the key players in such politics. Firstly, Law and Order is, by nature, the politics of crisis. Political and economical crisis of the moment demands responses by government and parts of its reactions would be incorporated into harsh criminal policies. The period of penal expansionism tends to reflect legitimacy crisis in government. Secondly, Law and Order is the politics of the conservative. The ideology of Law and Order is a complex set of attitudes, including ideas that individuals have free will against social conditions and that they should be harshly punished if they break the rules or fail to respect authority of the society. Under the influence of Law and Order politics, a false parallelism was invented. Rational and humanitarian treatment on criminal offenders seems soft on crime, and thus appears incompetent on crimes and criminals. On the contrary, harsh punishment seems tough, and thus would appear effective and competent on the problems of crime. When such political rhetoric of ‘softness’ or ‘toughness’ prevails over criminal justice, a rational and thoughtful policy-making cannot be expected. Thirdly, Law and Order is the politics of marketization. It argues that the State should intervene only in the area of law and order; the maintenance of public order and the policing of crime are prerequisites for proper functioning of the market. This also led to a revival of classical theory of criminal responsibility, which echoed the individualism of the market. Fourthly, Law and Order is the politics of fear. It appeals to fear of crime and for much stricter penal policies treating criminals with exemplary severity. The public greatly overestimates the prevalence of violent crimes, and underestimates actual sentence levels imposed by the courts. Fifthly, Law and Order is the politics of symbol. Criminal justice policies under the flag of Law and Order rhetoric chiefly serve symbolic rather than substantive ends. Therefore, empirical proof of their disappointing impact on crime rate cannot dissuade politicians from preoccupation with harsh punishment. In terms of long-term effect, such makeshifts tend to lose people’s trust in the criminal justice system. Sixthly, Law and Order is the politics of over-simplification. Diverse political, economic and social situations, which must be considered in formulating criminal justice policy, are just simplified as crime and disorder. The social realities of crimes are blanketed under political rhetoric. Lastly, Law and Order is the politics of exclusion. It exploits public resentment of crimes and criminals. When such stance is coupled with exclusive postures against ethnic minorities, asylum-seekers, foreign labourers, Law and Order takes an instrumental role of gathering political support. Law and Order politics, from the experiences of US and UK, is far from the effectiveness and legitimacy of criminal justice policy. It is necessary to demystify the idea of Law and Order as much as possible and to make an effort toward disclosing the reality of crime control to the public in order to tackle the crucial influence of Law and Order on criminal justice reform. The incumbent president puts its priorities in the restoration of law and order. South Korea may see the advent of Law and Order coalition, which pushes forward anti-human rights and pro-market criminal justice policies. This may bring a long-term crisis in the legislation and practice of criminal justice system. Against such coalition, critical lawyers, progressive media, and NGOs should form a human rights coalition. Against the influence of Law and Order politics, human rights principle should serve as practical guidance in the reform of criminal laws and criminal justice system.