The Sanitization of Criminal Justice ?
The Use of Illness in Criminal Trials
This article examines the inclusion of a health approach in judicial decisions through an analysis of legal proceedings whereby defendants, judges and lawyers use health issues during criminal trials. Based on observations conducted over the course of a year in three sections of a summary trial court and the creation of a database from these obser- vations (n = 290), we show that illness is an approach explored by magistrates who, following a rationale of individualizing punishment, encourage defendants to reveal their “health problems.” Those who are shown to be ill are then systematically questioned on their involvement in medical care. Regression analysis reveals that this care strongly determines the criminal punishment. Defendants undergoing medical treatment are “pro- tected” from prison while those who are not receiving treatment are more often sent straight to prison at the end of their trials. These results and the analysis of arguments in which “health problems” are used in the course of hearings, emphasize the supposi- tions on which judges base their decisions, and which take the form of three normative imperatives affecting all defendants. This leads to the over-incarceration of the most marginalized, among them, the sick who are not undergoing treatment.
Key words. CRIMINAL JUSTICE – HEALTH – SENTENCING – INDIVIDUALIZATION OF PUNISHMENT – NORMATIVE IMPERATIVES