Title 18 §2103 of the Pennsylvania Consolidated Statutes forbids me from insulting the Pennsylvania flag. Title 42 §5552 forbids Pennsylvania’s prosecutors from holding me accountable now for insul...

Our research describes the experiences, views, and attitudes of participants of mediation dialogue groups involving non-related traffic accidents regarding their participation and related topics, such as responsibility, rehabilitation, and restoration. In Belgium, the criminal law holds that victims and offenders need to be informed about the option of entering a restorative mediation process during criminal proceedings. Mediation is voluntary and provided by an independent state-funded organization. We collected the data through individual semi-structured in-depth interviews with participants of two mediation dialogue (...) groups. The data were analyzed through reflexive thematic analysis. We identified three main themes: (a) the importance of shared stories, (b) blurred boundaries, and (c) opportunities and obstacles for repair. Overall, our analysis suggests that mediation involving similar but non-related incidents may provide the participants with valuable knowledge and insights about one another's lives and thoughts and lead to mutual understanding and support. For some, it may even involve a transformative experience. Importantly, our analysis reveals that (a) the presence of a “shared story” and (b) a group dynamic in which participants feel sufficiently at ease with each other are pivotal to achieving a sense of connection and resonance that allows for such mutual understanding and support. These appear to be prerequisites for enabling any kind of healing. (shrink)

Criminal sentencing has grown into an increasingly interactive process featuring a multiplicity of potential actors—prosecution, defence, the individual convicted of the crime, probation officers and case workers, victims or their families, the police, community representatives, community workers, and even academics. The philosophical foundations of sentencing scholarship, however, regularly assume a model of judicial solitude in which sentencing judges are separate and apart from other actors. This article suggests the need to take sentencing’s interactivity and its politics seriously and draws on (...) democratic theory to address this gap. Accordingly, it argues that listening—as conceived of by deliberative democrats—is essential to a relational ethic that ensures both the legitimacy and quality of sentencing decisions, particularly in cases involving marginalized communities. In doing so, it turns to judicial practice and highlights both the need and possibilities for listening to be taken up as an explicit feature of judicial ethics. (shrink)

This article assesses how good character is used to discount sentences in tax and benefit fraud cases in Aotearoa New Zealand. Four factors are highlighted. The first is a focus on neoliberal priorities that privilege “good citizens” who are primarily tax fraudsters, with the provision of sentence discounts to ensure the offender can remain in employment. The second is sentence reduction, which is primarily visible in tax cases when repayment of the outstanding funds is made. While the average value of (...) benefit fraud is less than a quarter of the average tax fraud, typically, money obtained from benefit fraud is used for living expenses and not available for repayment. Third, only tax fraudsters benefited from anticipated reparation, on the expectation from the court that this would occur after sentencing. Finally, the ways in which prior tax offending is classified leave tax offenders in a stronger position to claim no prior offending and receive a sentence reduction for good character. These factors combine to result in unfair outcomes that benefit tax offenders. (shrink)

In 1939, sociologist Edwin Sutherland coined the term “white-collar crime.”1 Nothing about this curious pocket of the criminal law has been clear ever since. Indeed, just the phrase “white-collar c...

This article’s primary concern is with characterizing and distinguishing institutional corruption and institutional corrosion. While the concept of institutional corruption entails some degree of culpability on the part of institutional role occupants, this does not seem to be the case with institutional corrosion. The article outlines and motivates a prior definition of institutional corruption developed elsewhere to develop an account of the contrasting notion of institutional corrosion. Since both institutional corruption and institutional corrosion are typically the product of some form (...) of collective action or omission on the part of multiple institutional role occupants, there is also a need to provide a serviceable notion of collective responsibility. (shrink)

In a recent article in this journal, Isaac Taylor warned against the unconstrained use of algorithms as instruments to determine sentences in criminal cases. More precisely, what he argued is that it is important that the sentencing process serves a condemnatory function, and that the introduction of sentencing algorithms threatens to undermine this function. In this reply to Taylor, it is argued that even though his considerations are interesting as they direct attention to the sentencing process and not merely the (...) output of algorithmic sentencing, there are nevertheless reasons to be skeptical of his argument. More precisely, it is argued, first, that it is far from clear that we must accept the basic premise underlying Taylor’s argument, namely, that the sentencing process should serve a condemnatory function and, second, that even if this premise is true, it does not follow that the condemnatory element of the sentencing process is undermined by introducing algorithms as advisory instruments at sentencing. (shrink)

In criminal proceedings, offenders are sentenced based on doctrines of culpability and punishment that theorize why they are guilty and why they should be punished. Throughout human history, these doctrines have largely been grounded in legal-policy constructions around retribution, safety, deterrence, and closure, mostly derived from folk psychology, natural philosophy, sociocultural expectations, public-order narratives, and common sense. On these premises, justice systems have long been designed to account for crimes and their underlying intent, with experience and probabilistic assumptions shaping theoretical (...) discourses on the nature of crimes and offenders’ punishability. As scientific discoveries, inventions, and methodologies progressively developed to refine such doctrines and displace long-held assumptions, criminal courtrooms have increasingly witnessed counsels and judges relying on scientific evidence to submit, dispute, or validate claims. For instance, over the last century, criminal courtrooms have selectively admitted neuroscientific models, exams, and insights claiming to revolutionize our understanding of who is culpable and deserving of punishment. Most recently, advancements in epigenetics have promised even more profound challenges to long-standing criminal law doctrines. This article examines the reasons reversibility and inheritability of epigenetic markers might warrant revising culpability and punishment and concludes that epigenetic findings are not yet robust enough to justify such revisions. (shrink)

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy (...) arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined. (shrink)

In the aftermath of George Floyd’s death on May 25, 2020, calls for substantive juvenile and criminal justice reform to promote racial and ethnic equity swept the nation. Challenging zero tolerance...

This article examines the inherently ethical nature of resource allocation in policing. Decision-makers must make trade-offs between values such as efficiency vs. equity, individual vs. collective benefit, and adopt principles of distribution which allocate limited resources fairly. While resource allocation in healthcare has been the subject of extensive discussion in both practitioner and academic literature, ethical resource allocation in policing has received almost no attention. We first consider whether approaches used in healthcare settings would be suitable for policing. Whilst there (...) are some high-level similarities in the relevant ethical considerations and processes—such as aiming for efficient and equitable resource deployment—there are also fundamental differences between the two settings, which we argue necessitate a different approach. These differences include: (1) greater diversity and incommensurability of the benefits of policing, (2) more frequent non-linearity in returns on policing investment, (3) greater “ethical divisibility” (permissible scaling down) of programs in policing, (4) a requirement to assess “need” for policing resources at the collective (rather than individual) level, and (5) clearer primacy of equity considerations in policing. Having drawn out the implications of these differences, we sketch some tentative proposals for ethical resource allocation in policing. (shrink)

In this paper we explore whether or not the use of risk assessment tools in criminal sentencing can be made compatible with a retributivist justification of punishment. While there has been considerable discussion of the accuracy and fairness of these tools, such discussion assumes that one’s recidivism risk is relevant to the severity of punishment that one should receive. But this assumption only holds on certain accounts of punishment, and seems to conflict with retributivist justifications of punishment. Drawing on the (...) broader desert literature, we explain the source of this conflict, and suggest that a retributivist approach on which the severity of punishment partly depends on one’s character in addition to their acts offers some hope of reconciling retributivism with the use of risk assessment tools in considerations of sentencing reduction in particular. Ultimately, however, even this limited attempt at reconciliation fails, so long as risk assessment tools fail to distinguish between risk that one is responsible for, and risk that one is not responsible for. (shrink)

For persons serving life-without-parole (LWOP) sentences in California, a commutation usually offers them the sole glimpse of hope for release from prison. While governors were reluctant to consider any sentence reductions from 1975 to 2016, commutations—including those for LWOP—have become a more frequent occurrence since. Yet, little is still known about how governors have justified reducing a sentence that initially offered no prospect of release from prison. Given the apparent change in practice, themes emerging from the content of 177 gubernatorial (...) commutation summaries granted to persons serving LWOP sentences between 2017 and 2021 are analyzed in this paper. Through open coding, rehabilitative indicators (programming and institutional conduct) emerged as necessary preconditions for a commutation, while retributive factors (a reassessment of the nature of the crime and the prerogative to adjust excessive prison sentences or to correct sentencing errors) complemented sentence reductions. The findings expose the ethical issues that arise from an LWOP sentence and the subsequent commutation. More specifically, they shed light on the commitment offenses underlying commuted LWOP sentences and raise questions regarding the penal objectives that are supposed to be accomplished with permanent imprisonment. (shrink)

Even though the measurement of fear of crime in criminological research commenced a few decades ago, specific populations, such as social activists, remain undocumented. This article is an attempt to address this gap. A study was conducted among 153 social activists involved in exposing corruption and irregularities that take place in the government system in India. This article explores the gap between the fear of crime and actual victimization among the specific social activists in India. The results indicate activists expressed (...) moderate fear of any one form of victimization including verbal and emotional, physical, and sexual victimization. It was also found that one-third of them have reported facing some form of abuse. The research implications are discussed. (shrink)