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Date: April 30, 2024 Tue
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Results for criminal law
31 results foundAuthor: Schloenhardt, Andreas Title: Palermo on the Pacific Rim: organised crime offences in the Asia Pacific region. Summary: This paper suggests that 'We must recognise the failure of the "organised crime laws" to win the "war on organised crime".' Offences designed to penalise criminal organisations constitute the most recent and perhaps most ambitious strategy to fight organised crime. The common feature of these offences is that they are designed to target the structure, organisation, members, and associates of organised crime groups. Their shared rationale is the view that disrupting criminal activities and arresting individual offenders does not dismantle the criminal organisations that stand behind these illegal activities. Four main types of organised crime offences are identified in this study. These include: 1. The conspiracy model, found in the Convention against Transnational Crime and in jurisdictions such as Australia, Singapore, Malaysia, Brunei Darussalam, and several Pacific Island nations; 2. The participation model stipulated by the Convention against Transnational Organised Crime, and also adopted in Canada, New Zealand, New South Wales, PR China, Macau, Taiwan, the Pacific Islands, and California; 3. The enterprise model based on the US RICO Act, which is also used in many US States, and the Philippines; 4. The labelling/registration model of Hong Kong, Singapore, Malaysia, Japan, New South Wales, and South Australia. Details: Bangkok, Thailand: United Nations Office on Drugs and Crime Regional Centre for East Asia and the Pacific, 2009, 315p. Source: Internet Source: Accessed April 27, 2018 at: http://apo.org.au/node/18766 Year: 2009 Country: Asia URL: http://apo.org.au/node/18766 Shelf Number: 116380 Keywords: AsiaCriminal LawDrug TraffickingIllicit MarketsOrganized Crime |
Author: Entorf, Horst Title: Turning 18: What a Difference Application of Adult Criminal Law Makes Summary: This paper contributes to the literature on specific deterrence by addressing the issue of selecting adolescents into adult and juvenile law systems. In Germany, different from the U.S. and most other countries, turning a critical cutoff age does not cause a sharp discontinuity from juvenile to adult penal law, but rather implies a shift to a discretionary system of both adult and juvenile law, dependent on the courts' impression of moral and mental personal development of the adolescent at the time of the act. The German legal system draws the line of adulthood at some fuzzy age interval between 18 and 21, which is well above the thresholds prevailing in the U.S. (16 to 18 years, state specific) and other countries such that the German evidence entails some external evidence to the previous literature mostly relying on U.S. data. Based on a unique inmate survey and two-equation models controlling for selectivity problems, results show that application of adult criminal law instead of juvenile penal law decreases expected recidivism of adolescents. Details: Bonn, Germany: Institute for the Study of Labor, 2011. 30p. Source: Internet Resource: IZA Discussion Paper No. 5434: Accessed March 21, 2012 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1745709 Year: 2011 Country: Germany URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1745709 Shelf Number: 124624 Keywords: Criminal LawJuvenile Justice SystemsJuvenile Offenders (Germany)Recidivism |
Author: Babiker, Mohamed Abdelsalam Title: Criminal Justice and Human Rights An agenda for effective human rights protection in Sudan’s new constitution Summary: Sudan is yet again undergoing a constitutional review process following the end of the interim period under the Comprehensive Peace Agreement (CPA). This process takes place against a legacy of human rights violations, which in no small part are due to a failure of the criminal justice system. It is in this context that this Position Paper addresses the critical question of why successive Sudanese Bills of Rights have to date failed to provide adequate protection and ensure the effective exercise of the rights to personal liberty and security, non-discrimination and equality before the law, as well as fair trial guarantees. In other words, why have many constitutions failed to be 'translated' into practice, including by bringing statutory law into conformity with its provisions, institutional reforms and adequate judicial protection? The Paper focuses on the substance of the Bill of Rights from a criminal justice perspective and its implementation. It develops a set of proposals aimed at addressing substantive shortcomings of the provisions related to criminal justice contained in the Bill of Rights of Sudan’s Interim National Constitution 2005 (INC). In addition, it identifies the mechanisms that need to be put in place to ensure effective implementation of the Bill of Rights. In this respect, it examines both substantive provisions and the effectiveness of the bodies and CPA commissions tasked under the INC to protect and promote human rights (i.e. Human Rights Commission, National Commission for the Review of the Constitution (NCRC), and the National Judicial Service Commission). Details: London: REDRESS and the Sudan Human Rights Monitor, 2012. 21p. Source: Internet Resource: Accessed April 5, 2012 at: http://www.pclrs.org/downloads/1203%20Sudan%20Criminal%20Justice%20and%20Human%20Rights.pdf Year: 2012 Country: Sudan URL: http://www.pclrs.org/downloads/1203%20Sudan%20Criminal%20Justice%20and%20Human%20Rights.pdf Shelf Number: 124821 Keywords: Criminal Justice Reform (Sudan)Criminal LawHuman Rights |
Author: Bierschbach, Richard A. Title: Proportionality and Parole Summary: Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation. Details: New York: Cardozo School of Law, 2012. 45p. Source: Internet Resource: Cardozo Legal Studies Research Paper No. 367: Accessed April 27, 2012 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038969 Year: 2012 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038969 Shelf Number: 125078 Keywords: Criminal LawCriminal ProcedureJuvenile OffendersParole (U.S.)Sentencing, Proportionality |
Author: Hollander-Blumoff, Rebecca Title: Crime, Punishment, and the Psychology of Self-Control Summary: Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment. Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided. Details: St. Louis, MO: Washington University in Saint Louis - School of Law, 2012. 54p. Source: Internet Resource: Washington University in St. Louis Legal Studies Research Paper No. 12-05-22: Accessed July 6, 2012 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2080858 Year: 2012 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2080858 Shelf Number: 125488 Keywords: Criminal LawLaw and PsychologySelf-Control |
Author: Lloyd, Paulette Title: The Global Diffusion of Law: Transnational Crime and the Case of Human Trafficking Summary: This article theorizes and analyzes the diffusion of criminal law globally. The past few decades have seen the proliferation of new laws criminalizing certain transnational practices, from money laundering to corruption; from insider trading to trafficking in weapons and drugs. Human trafficking is one example. How do we understand the fairly rapid move in the past two decades for many countries to criminalize the exploitative transshipment of people across borders. We argue that (1) issue framing is crucial; (2) once human trafficking is framed as linked to transnational crime, governments are more likely to adopt a prosecutorial approach to address it; and (3) the transnational crime frame explains the diffusion pattern of criminal statutes internationally. We test our argument by documenting the effect of issue framing and physical vulnerability on the diffusion of criminal law in this area. These results suggest the importance of combining both ideational and material factors to understand the spread of criminal law world-wide. Details: Unpublished Paper; 2012. 55p. Source: Internet Resource: Accessed November 20, 2012 at: http://www.socsci.uci.edu/files/internationalstudies/docs/2012/simmons.pdf Year: 2012 Country: International URL: http://www.socsci.uci.edu/files/internationalstudies/docs/2012/simmons.pdf Shelf Number: 126938 Keywords: Criminal LawHuman TraffickingTransnational Crime |
Author: Andreea, Cojocariu Maria Title: Subordinating Justice In Communist Romania: The Sovietization of the Romanian Criminal Justice System (1945-1953) Summary: This thesis addresses the judicial and legal systems of Romania from 1945 to 1953 within the context of the community takeover of Sovietization of Romania. More precisely, it discusses the arrangement of the judiciary and several amendments brought to criminal legislation (Penal Code). The thesis argues that during the period under focus Soviet-type judicial institutions, legal concepts and practices were transplanted to Romania at different stages. It also argues that beginning in 1948, when a Soviet-type constitution and a new penal code came into effect, the communist government of Romania gave political repression, to a certain extent a legal dimention. Accordingly, the aim of this research was to demonstrate that the repressive nature of the regime was upheld by the ideological interpretation of criminal law. Details: Budapest, Hungary: Central European University, Department of History, 2011. 75p. Source: Internet Resource: Thesis: Accessed May 9, 2013 at: http://www.etd.ceu.hu/2011/cojocariu_maria-andreea.pdf Year: 2011 Country: Romania URL: http://www.etd.ceu.hu/2011/cojocariu_maria-andreea.pdf Shelf Number: 128684 Keywords: CommunismCriminal Justice Systems (Romania)Criminal Law |
Author: Slogogin, Christopher Title: A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases Summary: The modern United States Supreme Court views the exclusionary rule as a means of deterring police conduct that unduly infringes privacy or autonomy interests. But in years past the Court also proffered two other reasons for exclusion: the importance of ensuring the integrity of the legal system (primarily by avoiding judicial complicity with police illegality) and the need to vindicate constitutional guarantees. Some version of one or both of the latter two rationales also appears to be the primary motivation behind the exclusionary rules in other countries. In contrast to the United States, however, in most of these countries exclusion is not very common. Those countries that focus on systemic integrity take into account not only the de-legitimizing impact of failing to exclude illegally seized evidence but also the truth-denigrating effect of excluding evidence. Those countries that focus on vindicating fundamental rights tend to define those rights narrowly, or undercut the vindication rationale in various other ways. After describing these developments, this paper examines, from both empirical and theoretical perspectives, the difficulties that arise in applying the deterrence, systemic integrity,and rights vindication models of the rule and concludes with thoughts about the possible alternatives to exclusion, the ways in which the exclusionary remedy can be refined, and the interaction of the exclusionary rule with substantive search and seizure law. Details: Nashville, TC: Vanderbilt University Law School, 2013. 25p. Source: Internet Resource: Vanderbilt University Law School Public Law & Legal Theory Working Paper Number 13-21: Accessed May 9, 2013 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247746 Year: 2013 Country: International URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247746 Shelf Number: 128688 Keywords: Criminal LawExclusionary RulePolice MisconductSearch and Seizure |
Author: Utkin, V.A. Title: Alternative Sanctions in Russia: Status, Problems and Prospects Summary: PRI's Moscow office has produced a new resource looking at the range of non-custodial sanctions available in Russia - how they developed, their application and impact in practice and how their effectiveness can be enhanced going forward. Details: Moscow: Penal Reform International, 2013. 61p. Source: Internet Resource: Accessed November 7, 2013 at: http://www.penalreform.org/wp-content/uploads/2013/09/Alternative-sanctions-in-Russia_English.pdf Year: 2013 Country: Russia URL: http://www.penalreform.org/wp-content/uploads/2013/09/Alternative-sanctions-in-Russia_English.pdf Shelf Number: 131606 Keywords: Alternatives to IncarcerationCriminal LawPrisonsPunishment (Russia)Sentencing |
Author: Domestic Violence Resource Centre Victoria Title: Justice or Judgement? The Impact of Victorian Homicide Law Reforms on Responses to Women Who Kill Intimate Partners Summary: Over the past decade in Australia, reviews of homicide laws have been undertaken in most jurisdictions with the aim of addressing concerns about legal responses to intimate partner homicides. In Victoria, problems were identified with the application of the partial defence of provocation, particularly in the case of men who kill their female intimate partners, while self-defence has been seen to be failing women who kill to protect themselves from their male partner's violence. In both contexts there has been a systemic failure to recognise the nature and impact of family violence. Significant changes to homicide laws were enacted in Victoria in 2005 which have been held up as a 'trendsetting' example of feminist-inspired reforms to remediate gender imbalances in legal responses (Ramsey 2010; Forell 2006). The rationale for key aspects of the reforms was to better accommodate the experiences of victims who kill violent family members (Victorian Law Reform Commission [VLRC] 2002; Australian Law Reform Commission [ALRC] and New South Wales Law Reform Commission [NSWLRC] 2010, p. 622). This discussion paper examines legal outcomes in the cases of women who have killed their intimate partners in the eight years since the reforms were implemented in Victoria. The focus of this paper is on whether, and to what extent, the reforms have improved the recognition of family violence and legal understandings of the circumstances in which women kill in response to violence by an intimate partner. Details: Melbourne: Domestic Violence Resource Centre Victoria, 2013. 64p. Source: Internet Resource: Discussion Paper: Accessed April 22, 2014 at: http://dvrcv.sites.go1.com.au/sites/thelookout.sites.go1.com.au/files/DVRCV-DiscussionPaper-9-2013-web.pdf Year: 2013 Country: Australia URL: http://dvrcv.sites.go1.com.au/sites/thelookout.sites.go1.com.au/files/DVRCV-DiscussionPaper-9-2013-web.pdf Shelf Number: 132119 Keywords: Criminal LawDomestic ViolenceFamily ViolenceHomicideIntimate Partner ViolenceWomen Who Kill |
Author: Thomas, Chantal Title: International Law against Sex Trafficking, in Perspective Summary: This study places international law on sex trafficking in a broad theoretical and historical context. First, it identifies the international law on sex trafficking as part of an "international law of prohibitionism" that operates as a particular kind of response to and management of globalization. Second, this study identifies dynamic forces both "external to" and "internal to" law that lead to prohibitionism. "External" factors refer to economic, sociological and cultural phenomena that seem to have triggered the turn to prohibition. The international legal framework responds to and reflects these external sociological factors; these factors are also productive of state power for the purposes of policing illegal transactions. Taking an historical approach, it is possible to construct a loose parallel between prohibitionism during the turn of the 19th and 20th centuries. If such dynamics helped secure the basis for the modern administrative state in the early 20th century, by supporting the consolidation of national police power, they may undergird and reinforce the expansion, not only of national, but also of international legal authority, in the 21st. The study's "internal" factors are social and legal concepts that determine the formulation, interpretation and application of a legal test. This internal analysis here examines the interaction within doctrinal structures of the dichotomy between legal consent and legal coercion, and of the mediating concepts of normality and abnormality. Both external and internal factors buttress the international law of prohibition as a basis for the expansion of state authority and of the authoritativeness of international law. Third, the study refines the historical context mentioned above to look at the international law against sex trafficking in particular. In the last great era of unregulated economic expansionism, the turn of the 19th century, concerns similar to anti-trafficking were in wide circulation, but expressed under the rubric of "white slavery." The earlier law, and the discourse surrounding it, exhibited some of the same features as the contemporary law. Finally, this study suggests that, whatever the moralistic or misguided features of prohibitionism, its rise may also prefigure a transition to broader market regulation. Prohibitionism is deeply implicated in a laisser-faire approach to law; it is the mirror image of, but also the continuation of, the vast apparatus necessary to maintain a market-oriented regulatory posture. It provides a vocabulary - mediated by constructs of 'abnormality,' or 'extraordinary' cases - to enable the discussion of market controls in an ideological environment in which such discussion might otherwise be discouraged. Even as it supports the market, however, prohibitionism is also associated with a set of concerns about the market's potentially harmful effects. Under the ideological constraints of laisser-fair-ism, concerns relating to the abuses of the deregulated market may tend to focus on extraordinary cases. Such concerns, however, though first expressed about "abnormal" contracts (such as those related to the trafficking of persons), may turn out slowly to gain sufficient currency to apply to "ordinary," "normal" contracts. As legal subjects, women seem to have provided the template for this discursive transformation in both historical eras (consider that the West Coast Hotel case that ended the Lochner era addressed the social need to protect women in the workplace). If the study's suggestions are accurate, then, prohibitionism may signal a change from the view that market regulation must be exceptional to an understanding of its pervasive importance. Details: Ithaca, NY: Cornell Law School, 2014. 62p. Source: Internet Resource: Cornell Legal Studies Research Paper No. 13-85 : Accessed August 25, 2014 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2274095 Year: 2014 Country: International URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2274095 Shelf Number: 133134 Keywords: Criminal LawFeminist Legal TheoryHuman traffickingProstitutionSex TraffickingSexual Exploitation |
Author: Mizzi, Pierrette Title: Sentencing Commonwealth Drug Offenders Summary: This study presents a national empirical picture of the sentencing patterns for the serious drug offences in Pt 9.1 of the Criminal Code (Cth) (the Code). It utilises data from the Commonwealth Sentencing Database (CSD) which is a joint project of the National Judicial College of Australia, the Commonwealth Director of Public Prosecutions and the Judicial Commission of NSW. The CSD was specifically designed to provide readily accessible information about sentences for Commonwealth offences prosecuted by the Commonwealth Director of Public Prosecutions. In a federation of States and Territories it is essential for the punishment of Commonwealth offenders that like cases are dealt with in a like manner so far as possible. A challenge to achieving consistency in sentencing for Commonwealth offences begins at a jurisdictional level as there is no Commonwealth court which deals with Commonwealth matters under a single set of Commonwealth laws. This study examines the notion of sentencing consistency by reference to High Court and intermediate appellate court decisions. The introduction of Pt 9.1 of the Code in December 2005 was a major statutory reform which saw the creation of a greater range of offences and, in the case of the trafficking and manufacturing of drugs, regulation by the Commonwealth Parliament in areas traditionally the province of the States and Territories. The empirical analysis shows that the most common offences prosecuted under Pt 9.1 relate to the importation and possession of marketable and commercial quantities of border controlled drugs. These offences carry maximum penalties of 25 years and life imprisonment respectively and are among the more serious types of offences in Pt 9.1. In the period from 1 January 2008 to 31 December 2012, we found an increase in the number of cases involving offences where the maximum penalty was less than 25 years. These were mainly offences involving the importation of marketable quantities of precursors. We also found an increase in the number of cases involving the less serious possession offences in Pt 9.1 of the Code, that is, those possession offences where the maximum penalty is 2 years imprisonment. That increase was most marked in 2011 and 2012. Details: Sydney: Judicial Commission of NSW, 2014. 140p. Source: Internet Resource: Research Monograph 38: Accessed September 11, 2014 at: http://www.judcom.nsw.gov.au/publications/research-monographs-1/research-monograph-38/Monograph38.pdf Year: 2014 Country: Australia URL: http://www.judcom.nsw.gov.au/publications/research-monographs-1/research-monograph-38/Monograph38.pdf Shelf Number: 133283 Keywords: Criminal LawDrug Abuse and Crime (New South Wales) Drug Offenders Punishment Sentencing |
Author: Perrin, Benjamin Title: How to Make Canada's New Prostitution Laws Work Summary: Bill C-36 (Protection of Communities and Exploited Persons Act) marks a turning point in Canada's approach to addressing prostitution that was spurred by the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford, which declared the old approach unconstitutional. This proposed legislation was recently passed by the House of Commons and has already been pre-studied by the Senate. It is expected to become law in the coming weeks. Under the new approach, prostitution is no longer considered merely a nuisance, but is recognized as inherently exploitative. While "johns," "pimps," and human traffickers are criminally liable, prostitutes generally are not. This is the right approach to this complex issue. It represents a major shift in how the harms of prostitution are characterized and confronted in the criminal law. It will require substantial work from governments, police, and civil society to ensure effective implementation. This brief Commentary highlights the major differences between the old and new approaches to addressing prostitution in Canada, discusses the anticipated Charter challenge to this new legislation that advocates for legalized/decriminalized prostitution have threatened, and identifies the next steps that are needed to ensure the effective implementation of Bill C-36. Details: Ottawa: Macdonald-Laurier Institute, 2014. 13p. Source: Internet Resource: Commentary: Accessed November 12, 2014 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2516028 Year: 2014 Country: Canada URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2516028 Shelf Number: 132058 Keywords: Criminal LawProstitutesProstitution (Canada)Sexual Exploitation |
Author: Perrin, Benjamin Title: Oldest Profession or Oldest Oppression?: Addressing Prostitution after the Supreme Court of Canada Decision in Canada v. Bedford Summary: The future of Canada's laws related to prostitution has become an urgent public policy issue in the wake of the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford. Three prostitution-related offences in the Criminal Code were found to infringe the Canadian Charter of Rights and Freedoms and are to be struck down, effective within one year. The Court's decision of December 20, 2013 has spurred a national debate on the issue as Parliament has this limited timeline to adopt any new legislative approach, or else Canada will face the de facto legalization of adult prostitution. Studies have painted a bleak picture of prostitution in Canada: - Street-level prostitution represents between 5-20 percent of all prostitution, the rest occurring indoors; - the majority of prostitutes entered prostitution between 14 and 20 years of age; - a disproportionate number of prostitutes were sexually abused as children; - substance abuse is significant among street prostitutes; and - marginalized women, including Aboriginal women, are particularly vulnerable to prostitution and more likely to face violence (including assaults, sexual assaults, and murder). Parliament has an opportunity to respond, within the general constitutional parameters that the Court has set. Decriminalizing/legalizing prostitution in the foreign jurisdictions reviewed in this paper (the Netherlands, New Zealand, Germany, Australia (Queensland), and the United States (Nevada)) has not been the hoped-for panacea for protecting prostitutes. Such an approach is not recommended. Canada should instead overhaul its prostitution laws. The starting point for such an approach could consist of three key components, inspired by an abolitionist model developed by Sweden and since adopted by other countries. The evidence from an independent inquiry is that such a model is working to reduce prostitution, change public attitudes, and undermine criminal elements and sex trafficking. First, going forward, Canada's objective should be to abolish prostitution. Its harms are inherent and cannot simply be regulated away. Second, prostitutes themselves should not be criminalized, but given support to help them exit. Leaving prostitution is the only way to truly protect prostitutes. In most provinces, this intensive assistance is sorely lacking. It has been suggested that the perpetrators of prostitution ("johns" and "pimps") should pay substantial fines that could be used to fund such services. There is merit in exploring this idea further. Finally, our criminal laws and enforcement should instead target pimps, traffickers, and johns with enhanced penalties - they are the perpetrators responsible for the harms of prostitution. Details: Ottawa: Macdonald-Laurier Institute, 2014. 32p. Source: Internet Resource: Accessed November 12, 2014 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387042 Year: 2014 Country: Canada URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387042 Shelf Number: 134060 Keywords: Criminal Law Prostitution (Canada) Sexual Exploitation |
Author: Anderson, James M. Title: The Changing Role of Criminal Law in Controlling Corporate Behavior Summary: What should be the role of the criminal law in controlling corporate behavior, and how can the execution of that role be improved? On the one hand, corporations have enormous power, and, when a corporation causes harm, there is a natural instinct to apply criminal sanctions, society's most serious expression of moral disapproval. In the wake of a harm in which a corporation had a prominent role, there are often calls for an increased use of the criminal law to tame corporate excesses. On the other hand, criminal liability has historically usually required criminal intent, a concept that applies oddly to a legal construction, such as a corporation. And more recently, critics have decried what they have termed the overcriminalization of corporate behavior, suggesting that there has been an overreliance on the use of criminal law in this context. To provide guidance to policymakers on the proper role of criminal sanctions in this context, RAND Corporation researchers (1) measure the current use of criminal sanctions in controlling corporate behavior, (2) describe how the current regime developed, and (3) offer suggestions about how the use of criminal sanctions to control corporate behavior might be improved. Key Findings There Is Mixed Evidence About the Changing Role of Criminal Law in Regulating and Controlling Corporate Activity - With the exceptions of the application of the Sarbanes-Oxley Act and the Foreign Corrupt Practices Act, the number of criminal prosecutions of corporations has declined in recent years, suggesting less formal prosecutorial activity rather than more. However, use of deferred-prosecution agreements (DPAs), non-prosecution agreements (NPAs), and debarment activity has increased sharply, suggesting that the threat of criminal action is still playing an important role in controlling behavior in this context. Recommendations - Recognize that criminal sanctions in this context are instrumental tools and not moral judgments. Lawmakers should be reluctant to pass statutes that punish without proof of criminal intent, courts should be reluctant to interpret statutes in ways that ignore criminal intent, and prosecutors should bring such prosecutions sparingly. - Have judges review deferred-prosecution and non-prosecution agreements. This practice would provide some assurance that the agreements are genuinely in the public interest and might allow third parties affected by the agreements to air their objections in a neutral forum. Policymakers should give serious consideration to requiring that every DPA and NPA be reviewed by an appropriate federal judge. This practice would provide additional transparency and reassure the public that justice was being served. - Carefully review debarment provisions. Debarment decisions should be made on a case-by-case basis by the relevant governmental agency, depending on the severity of the allegations made and their relevance to the domain of the governmental entity. - Consider substituting the use of civil sanctions. In many cases, civil sanctions that include formal fact-finding might function as well as or better than criminal sanctions. Details: Santa Monica, CA: RAND, 2014. 146p. Source: Internet Resource: Accessed March 9, 2015 at: http://www.rand.org/pubs/research_reports/RR412.html Year: 2014 Country: United States URL: http://www.rand.org/pubs/research_reports/RR412.html Shelf Number: 134766 Keywords: Civil SanctionsCorporate Crime (U.S.)Criminal Law Criminal SanctionsProsecutionSarbanes-Oxley ActWhite Collar Crime |
Author: Schuman, Jacob Title: Sentencing Rules and Standards: How We Decide Criminal Punishment Summary: Over the course of the past 300 years, American sentencing policy has alternated between "determinate" and "indeterminate" systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all? In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges "depart" or "vary" from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decision-making, instead sentencing in such cases based on the 3553(a) standard. I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments, which exacerbate the impact of rule-based errors. Details: Unpublished paper, 2015. 54p. Source: Internet Resource: Accessed march 11, 2015 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545671 Year: 2015 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545671 Shelf Number: 134898 Keywords: Criminal LawCriminal ProcedureSentencing (U.S.)Sentencing Guidelines |
Author: Kantorowicz, Elena Title: Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions Summary: The practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many countries introduced alternative sanctions such as community service or home confinement with electronic monitoring. Unfortunately, in practice those sanctions are often imposed on non-prison bound offenders, a phenomenon termed "the net-widening problem". Consequently, instead of reducing the prison population, the alternative sanctions substitute lighter punishments such as fine or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the courts. Therefore, the way to enhance the use of alternative sanctions as a substitute to short-term imprisonment is to change the behaviour of judges. This paper adopts the unique approach of behavioural law and economics in order to discuss procedural rules that have the potential to achieve the above-mentioned goal. Each of the analysed procedural rules explains the cognitive biases, which judges are subject to when choosing between a prison sentence and an alternative punishment. Following that, this paper analyses how the suggested procedural rules overcome or use those biases in order to promote the use of alternative sanctions. Details: Rotterdam: Erasmus University Rotterdam , 2014. 22p. Source: Internet Resource: Rotterdam Institute of Law and Economics (RILE) Working Paper Series No. 2014/10 : Accessed April 6, 2015 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531418 Year: 2014 Country: International URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531418 Shelf Number: 135162 Keywords: Alternatives to IncarcerationCriminal LawJudgesJudicial DiscretionNet-WideningPunishment |
Author: Uhlmann, David M. Title: The Pendulum Swings: Reconsidering Corporate Criminal Prosecution Summary: For more than a decade, the Justice Department morphed its approach to corporate crime, eschewing criminal prosecutions in favor of deferred prosecution and non-prosecution agreements that allowed large corporations to avoid the ignominy of criminal convictions. There seemingly were no crimes that did not qualify for corporate absolution. Then, with public alarm increasing over the lack of criminal prosecutions for the financial crisis, the pendulum swung, and criminal prosecutions were back in vogue. In 2014, the Justice Department brought record-setting criminal prosecutions against two European banks for currency manipulation, followed by similar prosecutions against five American and European banks during 2015. What explains the conflicted approach to criminal prosecution of corporations - and what does it reveal about the theoretical basis for corporate criminal liability? I argue that the Justice Department's erratic approach reflects a lack of agreement among practitioners about what is accomplished by the criminal prosecution of corporations, a disagreement that also exists in scholarly accounts of corporate criminal liability focused on retributive and utilitarian purposes of punishment. The emphasis on retributive and utilitarian theory, while instructive, obscures the expressive function of criminal law and the societal need for condemnation, accountability, and justice when crime occurs, particularly in the corporate setting. In this article, I offer a more complete account of corporate criminal prosecution, which reveals the moral content of corporate crime, considers the deterrent value of corporate prosecution, and explains why the expressive value of the criminal law is indispensable in the corporate context. Corporate wrongdoing has pernicious effects on our communities, the economy, and the environment, which warrant the condemnation the criminal law provides. Criminal prosecution of corporations upholds the rule of law, validates the choices of law-abiding companies, and promotes accountability. Together those values contribute to our sense that justice has been done when crime occurs, which enhances trust in the legal system, provides the opportunity for societal catharsis, and allows us to move forward in the aftermath of criminal activity. When corporations face no consequences for their criminal behavior, we minimize their lawlessness, and increase cynicism about the outsized influence of corporations in our society. Details: Ann Arbor, MI: University of Michigan Law School, 2015. 59p. Source: Internet Resource: Accessed August 24, 2015 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642455 Year: 2015 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642455 Shelf Number: 136536 Keywords: Corporate CrimeCriminal LawPunishmentWhite Collar Crime |
Author: Rodriguez Ferreira, Octavio Title: Criminal Procedure Reform in Mexico, 2008-2016: The Final Coundown for Implementation Summary: This is one of a series of special reports that have been published on a semi-annual basis by Justice in Mexico since 2010 on issues related to crime and violence, judicial sector reform, and human rights in Mexico. This report examines Mexico's progress toward implementation of the country's "new" criminal justice system, which introduces the use of oral, adversarial proceedings and other measures to improve the handling of criminal cases in terms of efficiency, transparency, and fairness to the parties involved. This report is based on several months of research and data analysis, field observation, and active participation by the authors in the process of training law professors, law students, and attorneys in preparation for implementation of the reforms. The report provides a general background on the 2008 judicial reform initiative, and examines Mexican government efforts to implement the reforms at the federal, state, and judicial district level, relying on a unique dataset and maps generated by the Justice in Mexico program based at the University of San Diego. As an additional resource, this report also contains a translation of the 2008 constitutional changes underlying the reforms. Ultimately, the authors find that there has been significant progress toward the implementation of the new criminal justice system, and offer recommendations to assist the Mexican government and international aid organizations to help Mexico sustain this progress in the years to come. Details: San Diego: Justice in Mexico, University of San Diego, 2015. 56p. Source: Internet Resource: Accessed October 28, 2015 at: https://justiceinmexico.org/wp-content/uploads/2015/10/151008_FINALCOUNTDOWN_Full-Finallow-res.pdf Year: 2015 Country: Mexico URL: https://justiceinmexico.org/wp-content/uploads/2015/10/151008_FINALCOUNTDOWN_Full-Finallow-res.pdf Shelf Number: 137161 Keywords: Criminal Justice ReformCriminal LawCriminal Procedure |
Author: Harcourt, Bernard E. Title: Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law Summary: Beccaria's treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics - these ricochets and reflections on Beccaria's treatise reveal multiple dimensions of Beccaria's work and provide an outline of a history of the foundations of modern criminal law. In becoming a classic text that has been so widely and varyingly cited, though perhaps little read today, "On Crimes and Punishments" may be used as a mirror on the key projects over the past two centuries and a half in the domain of penal law and punishment theory - and this essay hopes to contribute, in a small way, to such an endeavor. In the end, we may learn as much about those who have appropriated and used Beccaria than we would about Beccaria himself - perhaps more. Details: Chicago: University of Chicago Law School, 2013. 28p. Source: Internet Resource: Coase-Sandor Institute for Law & Economics Working Paper No. 648: Accessed November 12, 2015 at: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1633&context=law_and_economics Year: 2013 Country: International URL: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1633&context=law_and_economics Shelf Number: 137273 Keywords: BeccariaCapital PunishmentCriminal LawDeterrence |
Author: Great Britain. Law Commission Title: A New Sentencing Code for England and Wales Transition - Final Report and Recommendations Summary: 1.1 On 1 July 2015 we published an issues paper seeking consultees' views on an aspect of the Law Commission's project to codify sentencing procedure in a New Sentencing Code. 1.2 This report summarises the responses we received to that consultation, and lists the recommendations we make in light of those responses. We also set out in a little more detail some of the practical implications of the approach that we recommend. Details: London: Law Commission, 2016. 62p. Source: Internet Resource: Law Com. No. 365: Accessed May 20, 2016 at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/524631/55746_HC_30_Web.pdf Year: 2016 Country: United Kingdom URL: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/524631/55746_HC_30_Web.pdf Shelf Number: 139117 Keywords: Criminal LawSentencing |
Author: Sangero, Boaz Title: Safety from False Convictions Summary: This book provides readers with an exploration of ways to reduce the rate of false convictions in the criminal justice system. The criminal justice system should be seen as a Safety-Critical System, specifically a system that deals with matters of life and death, where any error is likely to cause grave harm to both the individual and society. Implementing safety in criminal law is necessary, both morally and economically. Incorporating into the criminal justice system a modern safety theory that is commonly accepted in other areas, such as space, aviation, engineering, and transportation, is an idea that was developed jointly by myself and Dr. Mordechai Halpert and presented mainly in the coauthored article "A Safety Doctrine for the Criminal Justice System." This is the starting point of the book. The book expands the preliminary proposition and engages in the application of the modern safety theory and methods in the criminal justice system. Thus, for example, the book demonstrates how the fundamentally important Identify-Analyze-Control method can and should be implemented in the system, using Nancy Leveson's STAMP's model ("System-Theoretic Accident Model and Processes"). This is the first book that proposes a general theory of safety for the criminal justice system. It provides specific safety rules for certain types of criminal evidence and criminal law procedures. Details: Ramat Gan, Israel: The Author, 2016. 256p. Source: Internet Resource: Accessed August 29, 2016 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2816292 Year: 2016 Country: International URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2816292 Shelf Number: 140077 Keywords: Criminal LawEyewitness TestimonyFalse ConvictionsInnocencePlea BargainingWrongful Conviction |
Author: Jacobson, Jessica Title: Joint Enterprise: Righting a Wrong Turn? Report of an exploratory study Summary: Joint enterprise is a doctrine of criminal law which permits two or more defendants to be convicted of the same criminal offence in relation to the same incident, even where they had different types or levels of involvement in the incident. For centuries, it has been an established and relatively uncontentious aspect of the criminal law of England and Wales that an individual who has intentionally assisted or encouraged another to commit an offence can be held liable for that offence; and that both individuals can be convicted even if it is not known which of them committed the essential act and which was the 'accessory'. In recent years, however, there has been growing controversy over the doctrine of joint enterprise. Strong criticisms of both principle and practice have been voiced by lawyers, members of the judiciary, academics, politicians and penal reformers, as well as by individuals prosecuted in joint enterprise cases and their supporters. These criticisms have focused on what is said to be the potential for individuals to be convicted and sentenced, under the doctrine of joint enterprise, for the most serious offences on the basis of highly peripheral involvement in the criminal acts. It is argued that in many such cases the level of participation in the offence was so slight, or the evidential threshold of conviction so low, that the conviction amounts to a substantial injustice. A related criticism is that young men from black, Asian and minority ethnic (BAME) groups are disproportionately affected or are explicitly targeted by joint enterprise convictions in cases of presumed gang-related violence. It has been argued that joint enterprise operates as a kind of criminal justice 'drag-net', sweeping up large numbers of young people into criminal prosecutions on the basis of their social networks and associations rather than any active involvement in criminality. Details: London: Prison Reform Trust, 2016. 60p. Source: Internet Resource: Accessed September 23, 2016 at: http://www.nuffieldfoundation.org/sites/default/files/files/Joint%20Enterprise%20Righting%20a%20Wrong%20Turn.pdf Year: 2016 Country: United Kingdom URL: http://www.nuffieldfoundation.org/sites/default/files/files/Joint%20Enterprise%20Righting%20a%20Wrong%20Turn.pdf Shelf Number: 146114 Keywords: Criminal CourtCriminal LawCriminal Prosecutions |
Author: van Loon, A.J. Title: Law and Order in Ancient Egypt: The Development of Criminal Justice from the Pharaonic New Kingdom until the Roman Dominate Summary: In one way or another, the civilizations who ruled over Egypt in antiquity could all boast a close connection to the concepts of 'law' and 'justice'. Balance, justice, and order - all personified by the goddess Ma'at - were the cornerstones of Ancient Egyptian religion and society. The Greek Ptolemies, who ruled over Egypt between 323 and 30 BC, would become famous for their advanced and intricate bureaucracy, which also featured a highly effective law enforcement system. The Romans, more than any, prided themselves on their laws, which remain influential in modern societies to this day. This thesis sets out to discover the manner in which criminal justice in Egypt developed from the times of the New Kingdom, through the Ptolemaic era, and under Roman rule. Not only for the above-mentioned anecdotal reasons, but also because the capability to deal with crime and to maintain order can serve as an indicator for a successful administration in general. Because criminal law forms an integral part of a legal system as a whole, which, in turn, is inseparable from the general administrative system of a country, all of these will be taken into account. The following questions will be answered in this thesis: how were the various legal and administrative systems organized?; which actions were considered to be crimes by the Egyptians, Greeks, and Romans?; who possessed the legal authority to deal with these matters?; and in what manner were criminal transgressions dealt with in practice? In the end, the aim is to not only find out how criminal justice developed in the course of nearly two millennia, but also to offer an explanation as to why these developments took their specific course. Details: Leiden, NETH: Leiden University, 2014. 63p. Source: Internet Resource: Thesis: Accessed September 27, 2016 at: https://openaccess.leidenuniv.nl/bitstream/handle/1887/30196/Law%20and%20Order%20in%20Ancient%20Egypt.pdf?sequence=1 Year: 2014 Country: Egypt URL: https://openaccess.leidenuniv.nl/bitstream/handle/1887/30196/Law%20and%20Order%20in%20Ancient%20Egypt.pdf?sequence=1 Shelf Number: 146152 Keywords: CrimeCriminal Justice SystemsCriminal LawHistorical StudyLaw EnforcementPunishment |
Author: Pelgrim, Riekje Title: Witchcraft and Policing: South Africa Police Service attitudes towards witchcraft and witchcraft-related crime in the Northern Province Summary: In the last two decades, the Northern Province of South Africa has experienced hundreds of so-called witch attacks: violent assaults in which individuals or groups of people are accused of practicing witchcraft. Since the mid 1980s, the attacking and killing of people believed to be witches has become an increasingly problematic social issue in this part of the world. Narrations of witchcraft related violence have been numerous in the press, police reports and the academic world. South African newspapers and television have covered the issue of witchcraft related problems extensively: a quick review of backdated articles and television programmes reflects the ever-growing social problem caused by the belief in witchcraft. During my six-month fieldwork period in the Northern Province, both The Mirror and the Soutpansberger, two local weekly newspapers, carried on average one witchcraft related article per edition. Even the Mail & Guardian and the Sowetan, national newspapers of substantial influence and objective reputation, have published numerous articles dealing with witchcraft related issues. Additionally, police reports of witchcraft related crime have been numerous. Statistics show that between 1990 and 2001, the number of witchcraft related cases has increased from an estimated 50 cases per year to over 1300 a year. As a result, special attention has been paid to this type of crime: the South Africa Police Service (SAPS) has been collecting statistical data and organising rallies and workshops. In this manner, the police have tried to raise awareness regarding the serious consequences of this type of crime and hope to diminish it. Awakened by these statistics, the social unrest and the subsequent media attention during the late 1980s and the early 1990s, the new national ANC government felt that it needed to address this situation. In an attempt to combat the ever-growing problems caused by the belief in witchcraft, it appointed a special research committee in 1995: the Commission of Inquiry into the Witchcraft Violence and Ritual Murders in the Northern Province of South Africa. Through means of unstructured interviews this commission - headed by Professor Ralushai - conducted extensive research regarding the subject of witchcraft and its related problems. The overall findings however were very limited and disappointing due to, inter alia, a complete lack of theoretical foundation and ambiguous methodology. Despite the fact that some recommendations in the fields of education and legislation were made, no constructive steps were ever taken and, like so many other research reports, the Ralushai findings ended up on a government shelf collecting dust. Compared to the media, the SAPS and the national government, the academic world has seriously fallen behind in its attention and concern for contemporary witchcraft related problems in the Northern Province of South Africa. Most scientific studies regarding witchcraft beliefs and their related social consequences are exceptionally dated. Although anthropologists studied the general topic of witchcraft beliefs extensively during the twentieth century, most data regarding the belief in witchcraft in the Northern Province dates back to fieldwork that was conducted during the 1930s and 1940s (Niehaus 2001: 1). Particular ethnic groups, such as the Sotho, the Tswana and Lovedu, were studied in those years by scholars like Junod and Krige, and their studies are to this day regarded as blueprints for Northern Province witchcraft beliefs. Although more recent data regarding these beliefs has been provided by scholars like Hammond-Tooke, Ritchken, Stadler and Delius during the 1980 and even 1990s, real in-depth anthropological studies regarding Northern Province witchcraft beliefs and especially their serious social consequences in the Northern Province leave much to be desired. In an effort to both fill this theoretical gap regarding witchcraft beliefs in the Northern Province, and to collect empirical data regarding specific witchcraft accusations, a research programme named 'Crossing Witchcraft Barriers in South Africa' was set up in 1997 as part of the South Africa-Netherlands Research Programme on Alternatives in Development (SANPAD). The aim of SANPAD programmes has been to stimulate alternative academic research in South Africa in the area of cross-fields of developments. The research project 'Crossing Witchcraft Barriers in South Africa' was based at the University of the North in South Africa and supported by the University of Utrecht in The Netherlands. Its aims were to establish an interdisciplinary study of witchcraft beliefs and witchcraft accusations in South Africa. At first, this programme was carried out by about a dozen senior students and junior staff from the University of the North in cooperation with members of the University of Utrecht. Researchers from different disciplinary backgrounds - sociology, psychology, anthropology, theology and religious studies - were engaged in fieldwork to find out from all parties involved what exactly happens in specific witchcraft related cases, and what their background and consequences are. As part of this project, I was invited as the only non-South African to partake in this research project in the Northern Province. During two periods of three months in 2001, I conducted research regarding the topic of the belief in witchcraft and in particular its relation to policing and legislation. Before going into the finer details of my research however, I will describe the problems caused by the Northern Province witchcraft belief, in order to contextualise the research question. Details: Leiden, NETH: African Studies Centre, 2003. 170p. Source: Internet Resource: African Studies Centre Research Report 72 / 2003 : Accessed September 28, 2016 at: https://openaccess.leidenuniv.nl/bitstream/handle/1887/12920/ASC-075287668-076-01.pdf?sequence=2%20- Year: 2003 Country: South Africa URL: https://openaccess.leidenuniv.nl/bitstream/handle/1887/12920/ASC-075287668-076-01.pdf?sequence=2%20- Shelf Number: 146159 Keywords: Criminal LawPolicingViolenceWitchcraft |
Author: Galdes, Andrew Title: Punishing Threats, Imprisoning Millions Summary: This thesis seeks to determine whether the federal criminal law has been used increasingly in the past several decades to punish conduct that poses a general threat to society, rather than conduct that causes a concrete harm to a particular victim. It situates this question within a broader discussion of criminal punishment in the United States, including rising incarceration rates, the theoretical justifications for punishment, and important legal limitations on its exercise. To determine whether the federal criminal law has been used increasingly to punish threats, this thesis charts the enforcement of twenty main categories of federal crimes over the past forty years. It gathers and organizes data on criminal case filings published yearly by the U.S. Department of Justice and the Administrative Office of the U.S. Courts. After calculating the trend of enforcement for each crime, it groups the twenty crimes into three categories based on whether the prohibited conduct constitutes a concrete harm versus a general threat of harm. Analyzing the results, the thesis concludes that there has been a strong trend over the past two decades to use the federal criminal law to target conduct which threatens to harm society, rather than conduct that does concrete harm to an identifiable victim. It argues that this trend is problematic for several reasons: it signifies that federal criminal law will be used to further exacerbate already escalated levels of criminal punishment in the nation; the use of criminal law to target conduct which threatens society is weakly justified theoretically; and using the criminal law to target conduct which threatens society weakens important safeguards in the law designed to constrain the use of criminal punishment. Details: Durham, NC: Duke University, 2011. 69p. Source: Internet Resource: Thesis: Accessed October 9, 2017 at: https://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/3794/Galdes_duke_0066N_10960.pdf?sequence=1 Year: 2011 Country: United States URL: https://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/3794/Galdes_duke_0066N_10960.pdf?sequence=1 Shelf Number: 147626 Keywords: Criminal Justice Policy Criminal LawPunishment |
Author: Bronsther, Jacob Title: Two Theories of Deterrent Punishment Summary: This Article assumes that state punishment, to be worth the cost of its administration, must deter crime to some sufficient degree. But it also assumes a moral principle: We must not sacrifice individuals as a means of mitigating harms or threats for which they have no responsibility. How can we hold both assumptions and justify state punishment? For deterrent punishment seems to violate the principle, as the state inflicts suffering upon an offender as a prudential warning to would-be offenders, for whom he has no responsibility. Existing theories of criminal justice have been unable to resolve this problem. In searching for a solution, this Article conceives of the criminal law as a system of protections, which all citizens rely upon for their assured liberty. The effectiveness of these protections depends, ultimately, on the self-application of criminal legal norms by people within the jurisdiction. Can we rely upon the legal protection against car theft? It depends on how much intent there is within the jurisdiction to steal cars. This Article argues that an offender's settled commitment to violate a criminal law - in combination with the criminal commitments of other offenders - creates the present "criminality" within a jurisdiction. Criminality diminishes the reliability of the criminal law as a guide to the incursions of other people. It chills the exercise of our rights, forces us to take expensive precautions, and/or subjects us to unreasonable risks of harm. Deterrent punishment, which aims to decrease the amount of criminality in society, is thereby permissible in two possible ways. It involves forcing an offender either (a) to repair the damage caused by his past criminality contributions or (b) to mitigate the ongoing threat of criminality, for which he has partial responsibility. Neither option involves "sacrificing" offenders to scare off people with whom they have no relationship. This conception of the criminal wrong, as a wrong against the wider society in the form of a contribution to criminality, reduces the role of the victim in the criminal process. This Article considers, however, the possibility of state liability as a co-defendant for the civil damages of crime victims. Details: London: London School of Economics & Political Science (LSE) - Department of Law, 2017. 43p. Source: Internet Resource: Accessed February 8, 2018 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3029564 Year: 2017 Country: International URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3029564 Shelf Number: 149027 Keywords: Criminal LawDeterrence Punishment |
Author: Dawson, Joanna Title: Brexit: implications for policing and criminal justice cooperation Summary: EU law on criminal justice and policing cooperation can be divided into five areas: - Mutual recognition of criminal decisions and cooperation ; - Participation in EU agencies; and - Information sharing - The substantive criminal law (the definition of criminal offences); - Criminal procedure; The UK currently has an arrangement whereby it can choose which laws it wishes to adopt, and opt out of others. In relation to the substantive criminal law and criminal procedure, the measures that the UK has chosen to adopt essentially affect domestic law. As such, they would not necessarily need to be altered as a result of the UK's withdrawal from the EU. By contrast, the mutual recognition of decisions, information sharing and participation in agencies involve cooperation between Member States. Therefore, alternative arrangements would have to be put in place of existing measures if the UK wished to maintain similar levels of cooperation. The Government has indicated that it wishes to maintain a close relationship with the EU in this area, reflecting the mutual benefits of the current arrangements. Experts from law enforcement, the legal profession and academia have highlighted the importance of certain existing measures, including the European Arrest Warrant; membership of agencies such as Europol and Eurojust; and information exchange via mechanisms such as the second generation Schengen Information System (SIS II). A number of factors are likely to affect the outcome of negotiations in this area. The UK will in some cases be seeking unprecedented access to measures for a non-EU, non-Schengen country. It remains to be seen whether the UK's pre-existing relationship with the EU, and the contribution it currently makes in relation to cross border crime and security, will be sufficient to secure this access. The UK will also have to adhere to data protection standards that are broadly equivalent to those in the EU on an ongoing basis, if it is to retain access to information sharing measures. Further, the Government has indicated that it does not intend to continue to accept the jurisdiction of the Court of Justice of the EU (CJEU). An alternative mechanism for resolving disputes as to the interpretation and implementation of any agreements reached will therefore need to form part of those agreements. Details: London: Parliament, House of Commons Library, 2017. 34p. Source: Internet Resource: Briefing Paper Number 7650: Accessed March 12, 2018 at: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7650 Year: 2017 Country: United Kingdom URL: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7650 Shelf Number: 149424 Keywords: Brexit Cooperation Criminal LawCriminal Procedures Information Sharing |
Author: Bard, Petra Title: The Effect of Brexit on European Arrest Warrants Summary: Apropos of a preliminary reference sent by the Supreme Court of Ireland to the Court of Justice of the European Union on 12 March 2018, this Policy Insight addresses the question of whether surrenders of suspects and convicts to the UK under the European arrest warrant regime would be affected by Brexit. Should an EU citizen, who is suspected of a crime or has been sentenced for committing one, be surrendered to and sentenced in the UK, he or she would highly likely be detained beyond Brexit, which is to take place in March 2019. Therefore, the rights that a suspect or convict might enjoy as an EU citizen will no longer be justiciable as matters of European law. This might set a bar against future surrenders to the UK. On 11 February 2018, however, the UK prime minister insisted that the UK wants to remain part of the European extradition regime, irrespective of Brexit. At the same time, the UK does not wish to follow any of the models of EU and third-country cooperation in criminal justice, but wants to have new, dynamic arrangements designed, and has a long list of demands. This paper argues that during the negotiations the EU should insist on values shared between the EU and the member states - such as justiciable fundamental rights and the rule of law, with special regard for judicial independence - which are the foundations of mutual trust and mutual recognition, principles that form a cornerstone of EU criminal justice. The paper attempts to reconcile the seemingly contradictory (sometimes self-contradictory) demands of the UK and the EU when laying down the details of their special relationship in the area of criminal cooperation. Details: Brussels: Centre for European Policy Studies, 2018. 16p. Source: Internet Resource: CEPS Papers in Liberty and Security in Europe : No. 2018-02: Accessed June 3, 2018 at: https://www.ceps.eu/system/files/PBard%20Brexit%20effect%20on%20EAW.pdf Year: 2018 Country: Europe URL: https://www.ceps.eu/system/files/PBard%20Brexit%20effect%20on%20EAW.pdf Shelf Number: 150450 Keywords: Arrest Warrants Brexit Criminal Justice Administration Criminal Law |
Author: Quilter, Julia Title: 'Intoxication' and Australian Criminal Law: Implications for Addressing Alcohol and Other Drug-Related Harms and Risks Summary: This report presents the findings of a study that explored how the state of 'intoxication' produced by the consumption of alcohol and/or other drugs is treated by the criminal law and criminal justice system in Australia. The study was motivated by the emergence, during the 2010s, of 'alcohol-fuelled violence' as a prominent and influential motif in policy debates and criminal law reform initiatives. The aim was to document the variety of ways in which assumptions and claims about the effects of alcohol and other drugs (AOD) are embodied in Australian criminal laws, and to compare those legal 'knowledges' with the knowledge that resides in the expert AOD literature. The project methodology involved three phases: i) A review of the expert epidemiological, public health and criminological literature regarding the effects of AOD, with a focus on expert understandings of the relationship between AOD intoxication and violence. Literature published in the period 2000-2015 was reviewed, with a focus on works of commentary and review including systematic reviews and meta-analysis. ii) Collection and analysis of currently in force (at May 2015) criminal law statutory provisions, in all Australian jurisdictions, that attach significance to the fact of a persons 'intoxication'. Each provision was catalogued with reference to the purpose for which significance was attached to intoxication, and with reference to how intoxication was defined. iii) Collection and analysis of decisions handed down during a 5 year period (2010-2014) by the highest appellate court in each State and Territory, and the High Court of Australia, in which the court considered evidence that the accused, the victim or a witness was 'intoxicated' at the time of the alleged commission of a criminal offence. The review of the expert literature in Phase 1 revealed that there is strong evidence of a relationship between violence and alcohol, but not a simple causal relationship. Alcohol is regarded as either a 'conditional' cause, 'risk' factor, or one of multiple factors that might be implicated in the production of violence (including homicide). There is far less evidence to suggest a correlation between illicit drugs and crimes of violence. There is an emergent but influential body of literature that critiques attempts to isolate or 'abstract' alcohol or illicit drugs from the social contexts within which violence occurs. This scholarship has important implications for the validity of instances in which the criminal law seeks to 'isolate' intoxication as a discrete factor - eg, as an offence element or sentencing factor. The chief findings of the Phase 2 review of legislation were: 1) Australian criminal laws attach significance to intoxication for a wide variety of purposes, including: as the basis for exercising a coercive power; as relevant to whether a suspect can be interviewed by police; as a core or aggravating element of an offence; as a (limited) 'defence' whereby the accused can dispute mens rea or 'voluntariness' and to limit reliance on intoxication evidence to support other defences; and as an aggravating or mitigating factor in sentencing. 2) Legislative provisions that attach criminal law/policing significance to intoxication are not limited to traditional criminal harms, but extend to a number of location - or activity-based 'sites' where AOD use is regarded as carrying risks of harm or anti-social behaviour, and thereby, a basis for criminalisation - eg public space use, transport, and dangerous activities (eg, firearms, mining). 3) There is no single or widely accepted definition of 'intoxication' in Australian criminal laws. Under-definition is widespread; there is significant variation both within jurisdictions and nationally as to how intoxication is defined; and the language used to define and describe intoxication is frequently ambiguous, leaving considerable scope for subjective assessments to be made by persons in authority. Although familiar because of their use in the driving offences context, biological detection approaches to defining intoxication (eg offences based on prescribed concentrations of alcohol) are relatively rare. 4) Under-definition is especially common in criminal laws concerned with public order offences and police powers. While it might be argued that a flexible approach to definition is appropriate in this context - given the need for 'on-the-spot' risk assessments - it is also important to recognise the potential for disproportionate impact on already marginalised individuals and communities, particularly Aboriginal and Torres Strait Islander persons. 5) Australian criminal laws frequently attach significance to 'intoxication' caused by illicit drugs (ie drugs other than alcohol) without regard to the evidence that different drugs have different effects, including depressant, stimulant and hallucinogenic effects. Moreover, while the criminal law typically demands that degrees of alcohol intoxication be measured (eg blood alcohol concentrations which deem a person to be intoxicated), equivalent provisions concerned with illicit drugs typically define intoxication with reference to the mere presence of a (prohibited) drug in a person's system - no matter how much was consumed, by what means and when. The chief findings of the Phase 3 review of appellate case law were that: 1) Court proceedings in relation to criminal charges involve a wide variety of approaches to assessing whether a person was sufficiently under the influence of alcohol or another drug that they should be regarded as 'intoxicated' for the purpose of the criminal law, including: self- and/or witness report of consumption; selfand/or witness report of behaviour or 'state'; biological detection; appearance/behavioural assessments by a police officer; assessment by medical, toxicology or psychology experts; and judicial assessment of the available evidence (including CCTV footage and video recording of police interviews). 2) Scientific and medical expert evidence regarding AOD effects exerts only a relatively modest influence on the concept of 'intoxication' that impacts on assessments of criminal responsibility. Juries are regularly asked to make complex assessments about the extent of a person's intoxication on the basis of their 'common knowledge' about AOD effects. Where judicial guidance is offered, it was observed that there was a tendency to deploy 'tests' based on a person's observable mechanical functions as a sort of 'proxy' for a state of intoxication that is sufficient to impede intent formation, or other cognitive processes relevant to criminal responsibility. 3) The so-called intoxication 'defence' is only one of the ways in which evidence of the accused's intoxication may impact on the courtroom determination of his/her criminal responsibility. The relationship between evidence of AOD consumption and effects, criminal trial processes and the determination of criminal responsibility is much more complex than is commonly recognised in both the scholarly literature and the political discourse that frequently surrounds intoxication-focused criminal law reform proposals and debates. 4) While the most common focus of Australian criminal law is accused/offender intoxication, victim intoxication also features prominently, particularly in the context of sexual offences. Despite concerted statutory reform which has attempted to ensure that a complainant's intoxication does not impede successful prosecution of offenders (indeed, that it can assist proof of some elements, such as the absence of consent), there is still considerable variation in how courts approach evidence of complainant intoxication - in relation to proof of non-consent and proof of the offender's knowledge of non-consent, and in relation to assessments of the credibility and reliability of the complainant's evidence. 5) Although recent policy debates suggest the ascendency of the view that intoxication should be regarded as an aggravating factor when it comes to the determination of punishment, judicial approaches to sentencing are more nuanced. Courts consistently articulate a 'general rule' that intoxication per se does not operate as a mitigating factor. However, the study identified a number of circumstances in which intoxication was treated as an 'indirect' mitigating factor by: supporting the characterisation of the offender's conduct as 'out of character'; supporting the characterisation of the offender's conduct as spontaneous/unplanned; linking the offender's behaviour to conditions which are regarded as mitigating, such as mental illness and addiction; or locating the offender in a context of wider disadvantage, specifically, Indigenous community disadvantage. In addition, courts regularly observe that the offender's intoxication 'explained but did not excuse' the criminal behaviour. 6) In addition to those contexts in which legislation prescribes intoxication as an aggravating factor, there are two circumstances in which courts treat intoxication as an aggravating factor when sentencing an offender. First, victim intoxication may be regarded as an aggravating factor where it increased her/his vulnerability (especially where there is evidence that the offender exploited this vulnerability). Second, offender intoxication may be regarded as an aggravating factor where s/he was considered to have been 'recklessly intoxicated' - ie aware, based on past experience, of being at greater risk of engaging in violence or other relevant criminal behaviour, while intoxicated. It is unclear, in the case law, how this insight on the part of the offender is established. The report concludes with the following recommendations: 1) While a single definition of intoxication for all criminal law purposes is neither feasible nor desirable, consideration should be given to the national standardisation of legislative terminology and criteria for assessing 'intoxication' for criminal law purposes. 2) 'Best practice' definitions must be sensitive to the different sites or regulatory contexts in which relevant laws operate, the different purposes for which significance is attached to intoxication, and the different rationales embodied in different statutes. 3) Further research is required to cautiously investigate whether the biological detection model could be more widely adopted, beyond the driving context, and potentially including contexts where the purpose in question is to address the increased risk of violence associated with alcohol intoxication. 4) Where circumstances demand that assessment based on observed behaviour is the more appropriate (or feasible) approach, this report recommends: a. uniform adoption of expressly stated criteria for making the assessment that a person is intoxicated; and b. a commitment by police forces, and other organisations whose officers/employees exercise coercive powers, to educating the wider community about how police officers are trained to assess intoxication, what criteria are used, and how the exercise of intoxication-related powers is reviewed and monitored by police agencies. 5) Further research is required into the nature of, and rationale for, the criminal law's approach to the effects of drugs other than alcohol in terms of producing the impairment, risk of violence and other effects with which the criminal law is concerned. Attention should be focused on whether the law takes adequate account of the different effects of different drugs, and the appropriateness of deeming the presence of any drug quantity to be evidence of impairment or other adverse effect. 6) Improved and more consistent 'knowledge transfer' between the AOD expert literature and legal contexts (law-making, policing, court decisions) is desirable. This should include greater specificity regarding the implications of AOD consumption for relevant physical, cognitive and emotional functions. Further, the AOD expert literature tends not to be attuned to questions for which answers are needed in law-making and application, and support for research to fill this gap should be considered. Details: Sydney: Criminology Research Advisory Council, 2018. 96p. Source: Internet Resource: Accessed July 5, 2018 at: http://crg.aic.gov.au/reports/1718/20-1415-FinalReport.pdf Year: 2018 Country: Australia URL: http://crg.aic.gov.au/reports/1718/20-1415-FinalReport.pdf Shelf Number: 150767 Keywords: Alcohol-Related Crime, Disorder Alcoholism Criminal LawDrug Abuse and Crime Drug-Related Crime Drunk and Disorderly Illicit Drugs Intoxication |
Author: Arizona Criminal Justice Commission, Statistical Analysis Center Title: Review of Arizona Revised Statutes Containing A Felony Criminal Penalty Summary: As part of the Arizona Criminal Justice Commission's (ACJC) work as required by A.R.S. 41-2405, Section A, the Commission is to: - Monitor the progress and implementation of new and continuing criminal justice legislation; - Analyze criminal justice programs created by the legislature in the preceding two years; and, - Analyze the effectiveness of the criminal code, with a discussion of any problems and recommendations for revision if deemed necessary At the direction of the Commission, ACJC's Statistical Analysis Center (SAC) along with program staff undertook a review of those Arizona Revised Statutes that contained a felony criminal penalty to determine the frequency of statute charges at the time of arrest across five-year, ten-year, and 15-year periods. Staff reviewed an extract of the Arizona Computerized Criminal History (ACCH) repository, maintained at the Arizona Department of Public Safety (DPS), to capture arrest charging frequency across Arizona Revised Statute criminal codes. The Arizona Criminal Justice Commission hopes that this report outlining those Arizona Revised Statutes that contain a felony criminal penalty and their use over the past 15 years will spark a dialogue by Arizona's legislators and policy makers about the increasingly complex landscape that has been created for Arizona citizens and law enforcement to navigate regarding illegal activities. Possible activities that could occur include: Convening of stakeholder groups that deal with specific issue areas to review existing statutes that contain felony penalties to determine if they are still applicable and necessary Review by the legislature to determine if penalties contained in one statute are duplicative of penalties contained in another (for example is A.R.S. 5-115A2, Bribe of Racing Personnel is a class 4 felony and has not been charged in the past 15 years, but A.R.S. 13-2309, Bribery of Participants in Professional or Amateur Games, Sports, Horse Races, Dog Races, Contests is also a class 4 felony and is regularly being charged) Action by the legislature to repeal statutes that are determined to be duplicative or have not been utilized after a specific period of time has elapsed Details: Phoenix: The Commission, 2018. 40p. Source: Internet Resource: accessed September 6, 2018 at: http://www.azcjc.gov/sites/default/files/pubs/Criminal_Code_Review_Report.pdf Year: 2018 Country: United States URL: http://www.azcjc.gov/sites/default/files/pubs/Criminal_Code_Review_Report.pdf Shelf Number: 151404 Keywords: Criminal LawFelony |