Commodifying Justice

Words like ‘productivity’, ‘streamlining’, ‘flexibility’, ‘operational efficiency’, ‘tax savings’ and ‘red tape’ are common terms in the free market economy but what place do they have in our criminal justice system?

UTS Law’s Dr Elyse Methven says this language of the market is infiltrating our legal system and leading to a tendency for justice to be measured as a commodity.

The focus of her research is summary offences and infringement notices:

My concern is with how neoliberal economic logic has infused and shaped debates regarding the acceptance of infringement notices as an essential component of the state penal apparatus, and how this logic has contributed to the minimisation of the importance of substantive and procedural justice.

On-the-spot fines began as a way to police traffic and parking breaches but, in most Australian states, this form of ‘summary justice’ has expanded to cover a range of offences ordinarily characterised as criminal in nature.

For example in NSW, infringement notices can be handed out for stealing, the possession of a small quantity of prohibited drugs, offensive language and offensive behaviour.

Dr Methven has analysed the political and police language used to justify the expanding use of infringement notices and says it revolves primarily around  delivering ‘cheap and efficient justice’ instead of around a concern for due process and deterrence. She says such linguistic strategies minimise the importance of due process:

It creates the impression that procedural due process ordinarily attached to criminal prosecution is unnecessary for minor offences, and consequently, should be circumvented by police and watered down by parliament.

Dr Methven says a ‘streamlined, one-size-fits-all approach’ promotes inequality by favouring those with enough available funds to pay a fine and disadvantaging the most vulnerable in society. Penalty notice schemes are ‘sold’ on the basis that they save on court time but they tend to concentrate power in the hands of police, while obscuring the exercise of police discretion from public scrutiny:

The primary beneficiary of the removal of bureaucratic ‘constraints’ is not the public ….. but the police, whose administrative decisions go largely unobserved and unchallenged. 

Dr Methven argues we must be vigilant and resist this creeping commodification of our justice system.

Further Reading:
'Commodifying Justice: Discursive Strategies Used in the Legitimation of Infringement Notices for Minor Offences'
Cheap and Efficient Justice? Neoliberal Discourse and Criminal Infringement Notices