Justice system reform is being implemented in Japan. The number of attorneys ( bengoshi ) has substantially increased and concerns have been raised about the impact on the profession's quality and ethics. The profession has called for a slowdown in the increase. Does the increase really adversely affect legal ethics in Japan? Should the pace of the reform be slowed down, from the perspective of maintaining legal ethics? This paper begins to answer these questions (...) through empirical analysis of (1) whether there is an increase in cases of ethical concerns; and (2) whether such an increase (if any) is caused by the increase in bengoshi . The paper then investigates whether there is an over-supply of bengoshi . It concludes with a discussion of the negative impact that a slowdown of the increase may have on access to justice and the bengoshi profession's (ethical) responsibilities. (shrink)

Racially disparate policing, prosecution, and punishment harm individuals, families, and communities. These practices must be understood within the context of the development of the criminal legal system as a means of racialized social control. This context permits a critical examination of the way criminalization has been and is still deployed to subject poor and racialized communities to systemic injustices. This commentary frames a call for interventions to integrate a health justice approach to ensure that they advance (...) racial and health equity to promote the well-being of individuals, families, and communities. (shrink)

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the (...) books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)

Post-Traumatic Stress Disorder is a major public health concern in both civilian and military populations, across race, age, gender, and socio-economic status. While PTSD has been around for centuries by some name or another, its definition and description also continue to evolve. Within the last few years, the American Psychological Association has published the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders, which includes some major changes in the diagnostic criteria for PTSD. Recent data on epidemiology, etiological (...) theories, and empirically supported methods of treatment, as well as implications for legal processes and criminal justice system personnel, are discussed. (shrink)

This article will explore some previously unrecognised legal and ethical issues associated with informal care-giving and criminal justice in the context of end of life decision-making. It was prompted by a recent case in Leeds Crown Court, which raises important issues for the people who care for their loved ones at home and for the criminal justice system more generally. Government figures estimate that over 5.2 million Britons are responsible for the care of relatives (...) or loved ones. In order to evaluate some of the ways in which they might find themselves exposed to unexpected criminal liability we have characterised this group as untrained carers who assume responsibility. (shrink)

New coverage of the recent wars in Afghanistan and Iraq, and the ensuing public education campaigns by the Department of Veterans Affairs and private veterans advocacy groups combine to call the public's attention to the many potential mental health problems associated with traumatic event exposure. Indeed, since 2001, Operation Iraqi Freedom and Operation Enduring Freedom combat and peacekeeping missions have been characterized by high levels of exposure to acts of extreme violence, with often gruesome effects. Less publically discussed is the (...) fact that a surprisingly large number of United States civilians also report exposure to traumatic events, such as severe interpersonal violence, natural disasters, and serious automobile accidents. In fact, approximately 70% of randomly sampled respondents indicated that they have experienced an incident characterized by significant perceived life threat at some point during their lives. (shrink)

On 26 March 20091, I introduced in the U.S. Senate a piece of legislation designed to establish a National Criminal Justice Commission. The Presidential level blue-ribbon commission would be charge...

Reason Curve, Jury Competence, and the English Criminal Justice System, a cross-jurisdictional and cross-disciplinary book, seeks to stimulate discussion and extend the debate in the area of criminal trials in light of the absence of an articulated explanation for a verdict. The book traces the history and development of the jury, from the Carolingian kings, its advancement in the English Courts following papal intervention, the impact of the Magna Carta, to its general use, current curtailment in (...) England and Wales, and re-emergence in Continental Europe. Central to the book's submission is the dictum that the jurors' franchise to deliver a cryptic verdict is 'a matter between them and their conscience... (shrink)

In recent years, discussion around memory modification interventions has gained attention. However, discussion around the use of memory interventions in the criminal justice system has been mostly absent. In this paper we start by highlighting the importance memory has for human well-being and personal identity, as well as its role within the criminal forensic setting; in particular, for claiming and accepting legal responsibility, for moral learning, and for retribution. We provide examples of memory interventions that (...) are currently available for medical purposes, but that in the future could be used in the forensic setting to modify criminal offenders’ memories. In this section we contrast the cases of dampening and enhancing memories of criminal offenders. We then present from a pragmatic approach some pressing ethical issues associated with these types of memory interventions. The paper ends up highlighting how these pragmatic considerations can help establish ethically justified criteria regarding the possibility of interventions aimed at modifying criminal offenders’ memories. (shrink)

This article describes a new type of medical-legal partnership (MLP) that targets the health and justice concerns of people enmeshed in the U.S criminal justice system: a partnership between clinicians who care for people with criminal system involvement and public defenders. This partnership offers an opportunity to not only improve patient health outcomes but also to facilitate less punitive court dispositions, such as jointly advocating for community-based rehabilitation and treatment rather than incarceration.

The purpose of this article is to continue the discussion on Europe’s converging criminal justice systems. In particular, I test a hypothesis that has recently appeared in the literature, which sees the jurisprudence of the European Court of Human Rights as one of the most significant factors that encourage a harmonization process between the adversarial and inquisitorial criminal justice systems of Europe. This claim is supported by examining the Court’s jurisprudence to identify decisions that led to (...) legislative and policy amendments in the domestic legal orders of the 46 member states of the Council of Europe. This account shows how an interplay currently taking place between judicial, policy, and statutory powers is marking the end of the adversarial-inquisitorial era. Finally, the conclusion identifies the three most important impediments that are likely to hamper this harmonization process. (shrink)

In the digital age, the use of advanced technology is becoming a new paradigm in police work, criminal justice, and the penal system. Algorithms promise to predict delinquent behaviour, identify potentially dangerous persons, and support crime investigation. Algorithm-based applications are often deployed in this context, laying the groundwork for a ‘smart criminal justice’. In this qualitative study based on 32 interviews with criminal justice and police officials, we explore the reasons why and extent (...) to which such a smart criminal justice system has already been established in Switzerland, and the benefits perceived by users. Drawing upon this research, we address the spread, application, technical background, institutional implementation, and psychological aspects of the use of algorithms in the criminal justice system. We find that the Swiss criminal justice system is already significantly shaped by algorithms, a change motivated by political expectations and demands for efficiency. Until now, algorithms have only been used at a low level of automation and technical complexity and the levels of benefit perceived vary. This study also identifies the need for critical evaluation and research-based optimization of the implementation of advanced technology. Societal implications, as well as the legal foundations of the use of algorithms, are often insufficiently taken into account. By discussing the main challenges to and issues with algorithm use in this field, this work lays the foundation for further research and debate regarding how to guarantee that ‘smart’ criminal justice is actually carried out smartly. (shrink)

Present regulations and prohibitions relating to psychoactive substances rest upon socio-historically contingent and hence arguably irrational foundations. New evidence bases located in post-genomic genetics and neuroscience hold the potential to disrupt them through demonstrating a lack of congruence between the regulations and prohibitions and the alleged and actual harms. How far might we use such knowledge to drive policy? What limits, if any, should be placed on our choices, and what attempts to influence these may be seen as acceptable? This (...) article seeks to address these questions in relation to criminal justice system and public health governance of psychoactive substance use. It will explore the implications of justifications employed in both areas to restrict free choice on the grounds of harm to the self and to others. The central argument made is that the current categorisation of psychoactive substances as lawful or unlawful is likely to become disrupted as the result of several separate discourses which converge over psychoactive substance use: enhancement, cognitive liberty and the degree to which subjective experiences of pleasure, well being and happiness might enable us to improve and maintain our health as individuals and that of society as a whole. In my view, the strategic deployment of concepts of addiction which has enabled the public health and criminal justice systems to be able to share governance over psychoactive substance use is likely to become destabilised by these discursive developments. In that policy in the United Kingdom and elsewhere now draws upon happiness research, while reformers advocate freedom of choice over means of enhancing our states of being, a new focus upon the rational evaluation of psychoactive substances governance seems plausible. (shrink)

The case for U.S. health system reform aimed at achieving wider insurance coverage in the population and disciplining the growth of costs is fundamentally a moral case, grounded in two principles: (1) a principle of social justice, the Just Sharing of the costs of illness, and (2) a related principle of fairness, the Prevention of Free‐Riding. These principles generate an argument for universal access to basic care when applied to two existing facts: the phenomenon of “market failure” (...) in health insurance and, in the U.S., the existing legal guarantee of access to emergency care. The principles are widely shared in U.S. moral culture by conservatives and liberals alike. Similarly, across the political spectrum, the fact of market failure is not contested (though it is sometimes ignored), and the guarantee of access to emergency care is rarely challenged. The conclusion generated by the principles is not only that insurance for a basic minimum of care should be mandatory but that the scope of that care should be lean, efficient, and constrained in its cost. -/- . (shrink)

Expert testimony in criminal cases remains controversial. Some of this controversy appears legitimately attributable to clinicians who violate professional boundaries by speaking directly to ultimate legal issues. In this paper, the “ultimate issue” problem that is a salient controversy in American forensic psychology is discussed from a Canadian perspective. Relevant legal, ethical and professional considerations for expert testimony in Canada are reviewed. In the end, it is argued that psychologists who offer opinions on matters of law are (...) violating professional boundaries and unwittingly fuelling the controversy that surrounds expert psychological testimony in the Canadian criminal justice system. (shrink)

Equality before the law is one of the fundamental guarantees citizens expect in a just and fair society. We argue that recent trend toward mass incarceration, which has had vastly disproportionate impact on African Americans, is undermining this claim to fairness and raises a serious legitimacy problem for the legal system as a whole. Using original data from the Race, Crime and Public Opinion study we show that African Americans view the 'War on Drugs" as racially biased in (...) its implementation. This perception of bias consequentially undermines legal system legitimacy by lowering blacks' expectations for police performance in their communities and encouraging receptivity to appeals for jury nullification based on race. (shrink)

The emergence of post-conviction DNA testing has had profound effects on the American criminal justice system. Although changes in the formal legal landscape are readily noticeable, the DNA exonerations have also produced other consequences that may have potentially more significance. To comprehend and assess the influence of post-conviction DNA testing one must examine more than just the law on the books. After some introductory material, Part I of this essay looks at repercussions DNA exonerations are having (...) on the basic operation of the criminal justice system, Part II examines new statutes that govern procedures for post-conviction DNA testing requests, and Part III briefly considers how these current developments may affect Supreme Court jurisprudence.Post-conviction DNA testing has evolved in little more than a decade. Before 2000, only two states, New York and Illinois, had statutes that authorized post-conviction DNA testing. In other jurisdictions, no formally authorized procedures existed that allowed inmates to make requests for DNA testing of crime scene evidence. (shrink)

"American criminal justice is a dysfunctional mess. The so-called Land of the Free imprisons more people than any other country in the world. Understanding why means focusing on color -- not only on black or white, but also on green. The problem is that nearly everyone involved in criminal justice faces bad incentives. "Injustice for All" systematically diagnoses why and where American criminal justice goes wrong, and offers functional proposals for reform. By changing (...) who pays for what, how people are appointed, how people are punished, and which things are criminalized, we can make the US a country which guarantees justice for all." --. (shrink)

This article takes up Smart’s suggestion to examine the way the law works in practice. It explores the context of current criminal prosecutions of domestic violence offences in Queensland, Australia. This article argues that legal method is applied outside the higher courts or “judge-oriented” practice and that the obstacles inherent to legal method can be identified in the practices of police, lower court staff, magistrates and lawyers. This article suggests that it may be difficult to deconstruct (...) class='Hi'>legal method, even by focussing on law in practice, and as a result it may be difficult to successfully challenge law’s truth claims in this way. The analysis of criminal prosecutions of domestic violence offences reported here supports Smart’s earlier findings that women and children who seek redress through the criminal justice process find the process at best ambivalent and at worst, destructive. However, the article also shows how, in the Queensland context, women sometimes find their way to feminism and personal empowerment by going to law. (shrink)

This work delves into the nature of the morality of the judges and prosecutors of the ICC, who are instrumental in perpetuating the flawed concept of international criminal vacation. This work does not imply distrust in the capacities of the prosecutors or judges of the Court. However, if they are not morally and legally accountable for safeguarding the survival and security of the rights of victims, then who is? This volume places a significant emphasis on an ethical and philosophical (...) understanding of the system of international criminal justice and how the system of vacation for major criminals has become a mechanism against the universal rights of men across the globe. It is in these circumstances that we become instruments of political power, devoid of morality and humanity, driven solely by the evil greed of governments that disregard the dignity of other nations and relegate their victims to a state of insignificance. (shrink)

US criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, this chapter argues that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of (...) mental processes, mainly realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, the authors sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. (shrink)

America’s legal system harbors serious, widespread injustices. Many defendants are sent to prison for nonviolent offenses, including many victimless crimes. Convicts often serve draconian sentences in crowded prisons rife with abuse. Almost all defendants are convicted without trial because prosecutors threaten defendants with drastically higher sentences if they request a trial. Most Americans are terrified of encountering any kind of legal trouble, knowing that both civil and criminal courts are extremely slow, unreliable, and expensive to use. (...) This book explores the largest injustices in the legal system and what can be done about them. Besides proposing institutional reforms, the author argues that prosecutors, judges, lawyers, and jury members ought to place justice before the law – for example, by refusing to enforce unjust laws or impose unjust sentences. Issues addressed include: · The philosophical basis for judgments about rights and justice · The problems of overcriminalization and mass incarceration · Abuse of power by police and prosecutors · The injustice of plea bargaining · The appropriateness of jury nullification · The authority of the law, or the lack thereof Justice Before the Law is essential reading for everyone interested in legal ethics, the rule of law, and criminal justice. It is also ideal for students of legal philosophy. (shrink)

This study contrasts the evidence exclusion principles within the adversarial legal system of the United States, particularly the “fruit of the poisonous tree” doctrine, with the inquisitorial system of Vietnam. The U.S. model, emphasizing the exclusion of unlawfully obtained evidence to protect the presumption of innocence and ensure fair trials, relies on the Fourth Amendment to prevent police misconduct. Conversely, Vietnam, with its focus on uncovering the truth, has started to adopt adversarial elements, including evidence exclusion, to (...) align with international standards and enhance human rights protections within its criminal justice system. The research examines the application of the “fruit of the poisonous tree” doctrine in the U.S. and its implications for Vietnamese legal reforms, especially the proposed amendments to Article 87 of Vietnam's Criminal Procedure Code. These reforms aim to exclude unlawfully obtained evidence while allowing for the use of evidence collected independently from illegal actions. Highlighting the need for a balanced approach that respects procedural rights and promotes justice, the study advocates for comprehensive legal reforms in Vietnam. It suggests amendments to refine evidence exclusion principles, ensuring they reflect both the Vietnamese context and the progressive features of U.S. criminal justice practices, thereby enhancing the fairness and integrity of criminal proceedings. (shrink)

The Criminal Cases Review Commission (CCRC) was the first publicly funded body created to investigate claims of wrongful conviction, with the power to refer cases to the Court of Appeal. In other countries, such as Australia, Canada and the United States, many regard the CCRC as the optimal solution to wrongful conviction and, for years, Innocence Projects in these countries have called for the establishment of a CCRC-style body in their own jurisdictions. However, it is now Innocence Projects which (...) are being introduced in England and Wales to try to assist applicants who are innocent but convicted. This article reviews why the CCRC was created, discusses the role of factual innocence within this body and within the criminal justice system generally and explores why Innocence Projects are being created in England and Wales, despite the presence of the CCRC. It explains how these different organizations may work together to assist factually innocent people who have been wrongly convicted, and the role Innocence Projects may play generally in criminal justice reform and legal education. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis (...) of the record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given (...) rise to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction. (shrink)

The transformations that have occurred at the state economic level, the change in the trends of opinion that animate postmodern societies, the increase in population have strongly affected the crime rate in the last 10-20 years in all the states of the world. The trends in the matter of sanctions vary greatly, whether it is the frequency of custodial sentences, the harshness - in general - of criminal sentences, the preference for punishments whose special maximums are higher or lower (...) or the adoption of some alternative measures to imprisonment or even criminal justice in general. Many of the new criminal policies are justifiable in the context of the national law of states, but few have a real chance of globalization. Penal reform was or is on the working table of all states of the world. The details vary from case to case, but the trend is general. The Scandinavian countries modified their sanctioning system and created new punishments, the Western European countries created systems for sanctioning and re-educating delinquents in an extra-criminal regime, in the U.S. one can note, paradoxically, the generalized tightening of punishments, a model followed by Great Britain and Australia, but at a lower level. There is a continuous debate at the level of legal doctrine on the appropriateness of adopting an authoritarian system of repression in criminal matters. This article aims to analyze the advantages and disadvantages of the liberal model of criminal repression in the European space, in the context of the phenomenon of globalization. (shrink)

The American criminal justice system falls far short of democratic ideals. In response, democratic communitarian localism proposes a more decentralized system with a greater emphasis on local control. This approach aims to deconcentrate power and remove bureaucracy, arguing local control would reflect informal cultural life better than our current system. This view fails to adequately address localized domination, however, including in the background culture of society. As a result, it underplays the need for transformative, democratizing (...) change. Rejecting communitarian localism, I defend a mass deliberative democratic approach to criminal justice reform that relies on institutions outside localities to democratize local institutions and background cultural patterns. Nonetheless, local institutions must be empowered to exert democratic control, as well as to influence institutions outside the locality. This process of democratic co-development offers greater hope for political equality, non-domination, and inclusive democratic deliberation about criminal law than democratic communitarian localism. (shrink)

Australia is witnessing a political, social and cultural renaissance of public debate regarding violence against women, particularly in relation to domestic and family violence (DFV), sexual assault and sexual harassment. Women's voices calling for law reform are central to that renaissance, as they have been to feminist law reform dating back to nineteenth-century campaigns for property and suffrage rights. Although feminist research has explored women’s voices, speaking out and storytelling to highlight the exclusions and limitations of the (...) class='Hi'>legal and criminal justice systems in responding to women’s experience, less attention has been paid to how women's voices are elicited, received and listened to, and the forms of response they have received. We argue that three recent public inquiries in Australia reveal an urgent need for a victim-survivor-centred theory of listening to women’s voices in law reform seeking to address violence against women. We offer a nascent theory of a victim-survivor-centred approach grounded in openness, receptivity, attentiveness and responsiveness, and argue that in each of our case studies, law reform actors failed to adequately listen to women by silencing and refusing to listen to them; by hearing them but failing to be open, receptive and attentive; and by selectively hearing and resisting transformation. We argue that these inquiries signal an acute need for attention to the dynamics of listening in law reform processes, and conclude that a victim-survivor-centred theory of listening is a critical foundation for meaningful change to address violence against women. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THE ROLE OF AN ULTIMATE AUTHORITY IN RESTORATIVE JUSTICE: A GIRARDIAN ANALYSIS Sara Osborne I. Restorative or Retributive Justice South African Episcopal Archbishop Desmond Mpilo Tutu's account of the gritty practicality of reconciliation versus retribution in his book, No Future Without Forgiveness, focuses long overdue attention on Restorative Justice, a law reform movement probably better known in international than in American legal circles. A (...) persuasive assertion of Restorative Justice advocates in their critique of increasingly retributive practices such as mandatory minimum sentencing, mandatory arrest, death penalty, juvenile incarceration, "three strikes" legislation, no parole, diminished prisoner services, to name a few, is that reintegrating offenders back into a community is a much more effective deterrence to anti-social violence than punishment alone. They have also observed that communitarian ideals and practices, more visible in traditional cultures1 are more conducive to Restorative goals ofreconciliation and reintegration than are practices of retributive justice rooted in ideals of individual rights. Therefore, such adjudicatory practices should serve as models for preferable alternatives. 1An examination ofrestorative justice under code-based systems of law (European, Roman Law) might also reveal more affinities since the focus ofthese systems is to define the permissible, rather than the impermissible. Code-based law begins with the commons; rightsbased law begins with the individual. 80Sara Osborne However, Western-style retributive justice remains the primary model for international law and Restorative Justice is the prophetic "outsider" voice. So, it is appropriate to ask to what extent and under what conditions are Western retributive justice systems able to incorporate or accommodate adjudicatory practices ofnon-Western or traditional cultures? How critical a factor is religion? These questions will appear wherever Western Law struggles to bring more cultural diversity under a unifying umbrella and they deserve close scrutiny. René Girard's insights into the relationship between law, religion, culture and violence are helpful in identifying practical implications ofthe restorative vision and systemic weaknesses ofretribution, and perhaps illuminating a third way. The metaphor of an organ transplant may be useful: without a genetic match between host and donor both risk destruction. It is the thesis of this paper that that genetic material is a very inclusive conceptualization of "religion" which I have named "Ultimate Authority," drawing on Girard's mimetic theory for the theoretical analysis. In other words, "religion" is indeed, always and everywhere, a critical factor in culture-specific institutions ofjustice. A Girardian understanding ofthe relationship between Ultimate Authority and criminaljustice systems indicates that while there are valuable lessons to be learned from trans-cultural dialogue, wholesale transplants may not be possible, or even advisable because conditions essential for comparable success do not exist in Western legal culture. This paper first presents some background about Restorative Justice, followed by an outline ofRené Girard's mimetic theory to define "Ultimate Authority." The second half of the paper describes alternative adjudicatory processes which have attracted the attention of Restorative Justice advocates and concludes with suggestions about future directions for criminal justice policy discussion. Restorative Justice is a movement which drew its initial energy from Civil Rights era non-violent social action. It has found avid supporters among those whose activism for socialjustice is faith-based as well as those whose activism is rooted in more secular communitarian ideologies. Perhaps because of its international following, a significant contribution ofthe movement has been to initiate trans-cultural dialogue about criminal justice, fostering an increased use of alternative dispute resolution techniques, primarily mediation. Restorative Justice doctrine insists that all crime is personal, evidence ofa broken relationship between victim, offender, and community. Restoring "right relationship" between all parties is both a moral and legal obligation; "justice" to be just must go well beyond addressing the specifics of the act which effected the break. In contrast, the focus of The Role ofAn Ultimate Authority81 retributive justice appears abstract, procedural, and narrow in pursuit of impartiality or neutrality, the ideal of Blind Justice.2 Howard Zehr, a consultant on criminal justice and a Canadian Mennonite who wrote the classic Restorative Justice primer, Changing Lenses: A New Focusfor Crime andJustice, describes the retributive criminaljustice process as "a drama between two abstractions," meaning a criminal and a victim, where the "victim" is even further abstracted... (shrink)

Justice for rape victims has become synonymous with punitive state punishment. Taking rape seriously is equated with increasing convictions and prison sentences and consequently most feminist activism has been focused on reforming the conventional criminal justice system to secure these aims. While important reforms have been made, justice continues to elude many victims. Many feel re-victimized by a system which marginalizes their interests and denies them a voice. Restorative justice offers the potential to (...) secure justice for rape victims, but feminist resistance has resulted in few programmes tackling such crimes. In After the Crime, Susan Miller evidences the positive outcomes of a restorative justice programme tackling serious offences including rape and recommends their development. However, her vision is ultimately limited by her recommendation of only post-conviction restorative processes and the implicit endorsement of the conventional criminal justice system. I argue that feminist strategy and activism must rethink its approach to what constitutes justice for rape victims, going beyond punitive state outcomes to encompass broader notions of justice, including an expansive approach to restorative justice. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Criminal justice is primarily designed to serve the public interest in relation to criminal acts. Restorative justice is designed to address the harm-related needs of individuals in the aftermath of wrongdoing. These distinct aims require such different processes and priorities that any attempt to integrate restorative justice within the criminal justice system will almost invariably undermine the quality and effectiveness of both. In this book, the author argues that the optimal relationship between (...) the two should therefore be one of maximum independence: the instruments of the state should not be used to impose or enforce the decision to participate in restorative justice, any component of the restorative justice process or its outcome. It is also suggested that, in the absence of legislative innovation, this kind of separation is likely to require that restorative justice is situated after a case has actually exited the justice system, or after it has, in legal terms, effectively done so, as in a post-sentence context. [Note: The publisher offers a 40% discount on this book (conditions apply). Please see the author's website: "Relational Approaches" for details.]. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess (...) the kind of free will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

Biomedical interventions, such as pharmacological and neurological interventions, are increasingly being offered or considered for offer to offenders in the criminal justice system as a means of reducing recidivism and achieving offender rehabilitation through treatment. An offender’s consent to treatment may affect decisions about diversion from the criminal justice system, sentence or parole, and so hope for a preferable treatment in the criminal justice system may influence the offender’s consent. This thematic (...) analysis of three focus group interviews conducted in Canada with members of the public investigates how the public views the use of biomedical treatments within the criminal justice system, and the practice of encouraging offender consent to biomedical treatment through the hope of a reduced criminal sentence. The public focus group discussions followed a semi-structured interview guide, and were based on two hypothetical case examples involving individuals choosing whether to consent to a range of cocaine addiction or anti-libidinal treatments respectively in the hope of receiving a more lenient sentence. The discussions covered a wide range of themes, and here we present the participants’ evaluations of this type of biomedical treatment offer in light of three key theoretical sentencing objectives: the promotion of public safety, the infliction of retributive punishment, and the rehabilitation of offenders. We conclude that public safety was the predominant concern of the participants when evaluating biomedical treatment offered at the time of sentencing to offenders who had committed serious crimes. Another important observation was that the public tended to reframe and evaluate biomedical interventions in terms of retribution and punishment, rather than rehabilitation and reform. (shrink)

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution (...) by offering the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)

The adversarial legal system is traditionally praised for its normative appeal: it protects individual rights; ensures an equal, impartial, and consistent application of the law; and, most importantly, its competitive structure facilitates the discovery of truth – both in terms of the facts, and in terms of the correct interpretation of the law. At the same time, legal representation is allocated as a commodity, bought and sold in the market: the more one pays, the better legal (...) representation one gets. In this article, I argue that the integration of a market in legal representation with the adversarial system undercuts the very normative justifications on which the system is based. Furthermore, I argue that there are two implicit conditions, which are currently unmet, but are required for the standard justifications to hold: that there is (equal opportunity for) equality of legal representation between parties, and that each party has (equal opportunity for) a sufficient level of legal representation. I, therefore, outline an ideal proposal for reform that would satisfy these conditions. (shrink)

Reform of child justice system has started with enactment of the Children Act 2013 in Bangladesh. The Act adopted a number of institutional setup for child friendly justice i.e. child help desks in the police station, separate children’s court, child development centres, national child welfare board etc. These all are inter-linked and the responsibilities of concerned authorities have been focused in the law. In practice, most of the children are deprived from their fair justice in (...) different phases i.e. police arrest, prosecution, court hearing and correctional treatment as there are lack of professional ethics of concerned personnel. Ethical approach, skill and knowledge of personnel are major challenges for treatment of offender children. Thus code of ethics are important for professionals to provide value-based justice for the best interest of the children. The study focuses on the legal and ethical responsibility towards child justice system in the country to protect child rights and their childhood. (shrink)

Direct brain intervention based mental capacity restoration techniques-for instance, psycho-active drugs-are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person's competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform (...) in criminal legal contexts-i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has-in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership-and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities. (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal (...) responsibility and directed more at empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

A new approach to sentencing Not Just Deserts inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of punishment, arguing that the criminal justice system is so integrated that sentencing policy has to be considered in the system-wide context. They offer a comprehensive theory of criminal justice which draws on a philosophical view of the good and the right, and which points the way to practical intervention (...) in the real world of incremental reform. They put the case for a criminal justice system which maximizes freedom in the old republican sense of the term, and which they call `dominion'. (shrink)

A defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing. Yet there is currently no evidence that remorse can be accurately evaluated in a courtroom. Conversely there is evidence that race and other impermissible factors create hurdles to evaluating remorse. There is thus an urgent need for studies about whether and how remorse can be accurately evaluated. Moreover, there is little evidence that remorse is correlated with future law-abiding behavior or (...) other legitimate penal purposes, and, in fact, there is evidence that remorse is often conflated with shame, which is correlated with increased future criminality. More accurate information on the nature and evaluation of remorse can be used to reform the criminal justice system. (shrink)

In recent years, political philosophers have hotly debated whether ordinary citizens have a general pro tanto moral obligation to follow the law. Contemporary philosophers have had less to say about the same question when applied to public officials. In this paper, I consider the latter question in the morally complex context of criminal justice. I argue that criminal justice officials have no general pro tanto moral obligation to adhere to the legal dictates and lawful rules (...) of their offices. My claim diverges not only from the commonsense view about such officials, but also from the positions standardly taken in legal theory and political science debates, which presume there is some general obligation that must arise from legal norms and be reconciled with political realities. I defend my claim by highlighting the conceptual gap between the rigid, generalised, codified rules that define a criminal justice office and the special moral responsibilities of the various moral roles that may underpin that office (such as guard, guardian, healer, educator, mediator, counsellor, advocate, and carer). After addressing four objections to my view, I consider specific contexts in which criminal justice officials are obligated not to adhere to the demands of their offices. Amongst other things, the arguments advanced in this paper raise questions about both the distribution of formal discretion in the criminal justice system and the normative validity of some of the offices that presently exist in criminal justice systems. (shrink)

This is a study of what constituted legality and the role of law in ancient societies. Investigating and comparing legal codes and legal thinking of the ancient societies of Mesopotamia, Egypt, Greece, India, the Roman Republic, the Roman Empire and of the ancient Rabbis, this volume examines how people used law to create stable societies. Starting with Hammurabi's Code, this volume also analyzes the law of the pharaohs and the codes of the ancient rabbis and of the Roman (...) Emperor Justinian. Focusing on the key concepts of justice equity and humaneness, the status of women and slaves, and the idea of criminality and of war and peace; no other book attempts to examine such diverse legal systems and legal thinking from the ancient world. (shrink)

Malcolm Feeley, one of the founding giants of the law and society field, is also one of its most exciting, diverse, and contemporary scholars. His works have examined criminal courts, prison reform, the legal profession, legal professionalism, and a variety of other important topics of enduring theoretical interest with a keen eye for the practical implications. In this volume, The Legal Process and the Promise of Justice, an eminent group of contemporary law and society (...) scholars offer fresh and original analyzes of his work. They asses the legacy of Feeley's theoretical innovations, put his findings to the test of time, and provide provocative historical and international perspectives for his insights. This collection of original essays not only draws attention to Professor Feeley's seminal writings but also to the theories and ideas of others who, inspired by Feeley, have explored how courts and the legal process really work to provide a promise of justice. (shrink)

Jonathan Jacobs examines the injustice of incarceration in the U.S. and U.K., both during incarceration and upon release into civil society. Situated at the intersection of criminology and political philosophy, Jacobs's focus is on moral reasoning, and he argues that the current state of incarceration is antithetical to the project of liberal democracy, as it strips incarcerated people of their agency. He advocates for reforms through a renewed commitment to the values and principles of liberal democracy and proposes a retributivist (...) conception of sanction to reform the criminal justice system and emphasizes the importance of proportionality. (shrink)

The presumption of innocence is not a presumption but an assumption or legal fiction. It requires agents of the state to treat a suspect or defendant in the criminal process as if he were in fact innocent. The presumption of innocence has a limited field of application. It applies only to agents of the state, and only during the criminal process. The presumption of innocence as such does not determine the amount of evidence necessary to find a (...) defendant guilty. In spite of these limits, the presumption of innocence protects suspects and defendants from specific dangers inherent in the criminal process. German procedure law is used to show these areas. (shrink)