Search

The paper will recount the demise of the Westpahlian narrative as a model of validity within the universe of international law. It will argue, first, that the invocation of this principle within new international regimes such as the World Trade Organization and the International Criminal Court leads to intrinsically paradoxical results. It will further argue that the Westphalian narrative has also lost its privileged status as a source of validity, giving room to other principles such as morality, science or various visions of transnational democracy. On close inspection these alternative principles reveal themselves, however, as equally problematic in terms of their coherence or completeness. What is unique in the current position, the paper will argue, is not the impurity of our forms of validation, but the emergence of multiple validating techniques, which are invoked, simultaneously, at the forefront of the international legal body. The contemporary universe of transnational law is characterizes by a shift from (imaginary) purity to multiple paradoxicality - a process of polymorphosis. The paper will conclude - following Luhmann - with a more general reflection on the nature of law as a paradoxical phenomenon and with an exploration of the possible consequences of the shift from purity to multiplicity. In that context the paper will explore the possible emergence of a post-paradoxical law. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper will consider the way offenders who are considered beyond the moral community - because of their behaviour, or because they are non-citizens - are responded to by the penal system. The central question of the paper is how we can deal with justice with those with whom we share no sense of community. Examples of people who are beyond the moral community are sex offenders, people accused of terrorism, people who commit offences which most of us cannot possibly understand.The paper will discuss some aspects of the relationship between 'punishment' and 'community', and then will introduce some ideas and models of justice which have the potential to carry justice across the borders of the moral community and into the 'wilderness' of non-membership. These ideas include the ideas of 'hospitality' and 'cosmopolitanism' in the work of Seyla Benhabib, Bauman, and Derrida in the works published shortly before his death. As well as introducing these ideas, the paper will ask whether the formulations in the most recent works of these authors point a way for ideas originating in the realm of morality to be made available as principles of justice. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In 2006, over a million immigrants and their allies rose up in cities across the United States to denounce the now famous Sensenbrenner bill (HR4437) that introduced controversial measures to criminalize immigration. The historic mass mobilizations exposed an important paradox. Since the 1960s, there has been a growing convergence between criminalization on the one hand and the expansion of rights for immigrants on the other. This paper traces the development of this paradoxical convergence, which I refer to as a rights/crime nexus, over three periods: 1965, 1986, and post-9/11. It argues that the formal recognition of rights for migrants in the post-civil rights era led to a greater intersection between immigration and crime control. Thus, the logic underlying the intersection between rights and criminalization is less about restricting movement and ultimately about policing citizenship and membership within a post-civil rights context. The paper stems from a year and one half of ethnographic research of immigration law enforcement at the U.S.-Mexico Border.   ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Over 90% of all criminal cases in the United States are resolved through plea bargaining. This form of case resolution was previously unknown in most of the countries of the former Soviet Union and the former Yugoslavia. Changing criminal procedure codes in many of these countries increasingly include some form of plea bargaining. Policy makers and legal professionals in some of these countries, such as Kazakhstan, actively debate whether to include plea bargaining in their criminal practice. This paper will critically analyze the increased use of plea bargaining in these countries looking at the power imbalances and cultural impediments to fair negotiation in the context of criminal cases in many of these countries. This paper will also discuss international aid given, particularly by the United States, to encourage the development of plea bargaining without critical analysis of whether plea bargaining will improve what are often times distressed and poorly functioning legal systems which do not adequately protect human rights. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In Japan and Korea there has been a movement toward increased lay participation in criminal adjudication. In both cases a significant part of the impetus for change was widely publicized miscarriages of justice. In this paper a number of these miscarriages will be examined and their implications considered. In addition, the paper will explore the trend, since the beginning of the Enlightenment, for justice system failures to be used as a justification for expanding lay participation in the criminal process. The implications of both the Asian precedents and the larger history will be explored with respect to events now transpiring in China. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper analyses the managerial practices as a key feature of public policies' efficacy in law enforcement. A great problem we address is the Police Officers and Managers cultural repertoire as key factor for the design of public policies, which is not oriented to managerial structures. This is especially critical concerning the implementation of Law Enforcement expenditures in Rio de Janeiro State from 2002 to July 2006 according to the new guidelines of Brazilian Ministry of Justice "Unified System of Public Security" (USPS). USPS is conceived upon seven main axis: 1 - organizational modernization of public security institutions in Brazil, 2 - integrated system of professional training, 3 - law enforcements institutions facilities' modernization, 4 - violence prevention emphasis, 5 - improvement of criminal statistics and knowledge management for law enforcement institutions, 6 - reequipment of police forces, 7 - law enforcement institution's integration and coordination. These guidelines are considered as an instrument to direct public investments on law enforcement institutions in Brazil. Using qualitative data collected with managing officers and quantitative data collected upon Rio de Janeiro's Accounting Court the study analyses how funds are invested according USPS guidelines. The data shows that Rio de Janeiro's Law Enforcement System lacks an organized system of costs management, which diminishes its efficacy, there are no investments following USPS guidelines or based on strategic planning. The paper concludes that Law Enforcement institutions must reform accounting management systems to become more accountable to direct its investments according USPS's guidelines. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The issue of parental authority to mete out corporal punishment is at the very core of the law relating to parents and children. The discussion surrounding it expresses broader world views bearing, inter alia, on the scope of parental autonomy, the perception of the family, and the perception of childhood. Over the last twenty years, far reaching changes have taken place in many countries with regard to the law relating to corporal punishment. A comparative analysis of the legal arrangements enforced in different legal systems enables us to pinpoint social and cultural factors affecting the law on this question, which could not be located by analyzing each system separately. In this paper, I conduct a comparative analysis of legal arrangements relating to corporal punishment of children in the American and Israeli legal systems. The American case relates to a legal system that clearly acknowledges parental authority to resort to corporal punishment and has undergone only slight changes, slowly and largely out of sight. The Israeli is one of far-sweeping changes, leading toward a clear and sharp rejection of corporal punishment. The paper focuses on factors that promoted and prevented change in each of the two systems. Three central elements emerge from the comparative analysis: (1)Factors resting on the perception of the individual-state relationship. (2)Factors resting on the different religious traditions and on the influence of these traditions on the law.(3)Factors resting on the characteristics of the Israeli and American legal system ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The literature on expertise presents expert witnesses as dominant, privileged, compliant, or rejected in relation to the force of law. The paper diverges from these views by relating the relevant knowledges and epistemic subjects that are involved in knowing how to sleep walk. The paper does so by focussing on the expert for the prosecution in an English Crown Court jury trial. The analysed case is on indecent assault and on a sleep walking defence. The expert, it shows, is placed in the midst of and in addition to various modes of knowing: the certified facts, the case for the prosecution, the other expert, and the jury's common sense. In combination with these knowledges, expert knowledge creates some distributed authority that promises sufficient and solid grounds to pass a verdict. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Rape as a form of sexual violence against women is an ever-increasing phenomenon in Nigeria, especially by law enforcement agents in situations of civil disturbances, inter-communal and inter-religious conflicts, and worse still, in Police custody. In spite of the international instruments on the elimination of all forms of violence against women, which was ratified by the government of Nigeria, the lack of commitment on the part of government to deal decisively with this sordid crime grossly undermines the notion of humanity, justice and good governance.This paper examines the degrees of the sexual violence of rape being perpetrated against women in Nigeria, its rights implications, as well as its horrific effects on the health, physical and psychological well-being of victims.It also addresses the many factors responsible for non-report of this violence by victims, the inherent weakness and inadequacy of law to effectively deal with this scourge in order to deter perpetrators and prospective ones, and protect victims.The paper argues in an analytical manner for innovative legal, policy and institutional reforms, towards prevention, expression of solidarity and rehabilitation of victims, so as to deal with the problem in a holistic way, if law is to effectively meet the needs of society in the 21st Century. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Juvenile false confessions are a serious problem throughout the world. In the context of the American criminal justice system, this paper looks at the connections between adolescent psychological development, police interrogation and the juvenile false confession phenomenon. It examines the psychological research on adolescent development and the impact this development can have on an adolescent's decision to waive his or her Miranda rights and on his or her ability to withstand the techniques used by police to obtain confessions. The paper looks briefly at how other Common Law countries such as Canada, Ireland, and the United Kingdom deal with juvenile interrogation and concludes that in order to minimize juvenile false confessions, states should 1) ensure adequate comprehension of the Miranda warnings, 2) change the police procedures for interrogating juveniles, and 3) videotape all interrogations. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper begins by outlining the emergence at the European level of a body of principles governing imprisonment. These principles include a commitment to using imprisonment as a last resort and a growing emphasis on the human rights of those who are imprisoned. Independent inspection of prisons is also being raised to the level of a binding principle. At the same time, many European countries experience an increase in detention rates. The paper highlights the tension that exists between European traditions of abolitionism and reductionism, on the one hand, and the movement towards the recognition of prisoners' human rights, on the other: There is the danger that imprisonment that is presented as humane, effective and subject to close regulation and inspection might be seen as an acceptable penalty and not one that should be used restrictively. The paper considers how this tension may be addressed.Finally, the paper examines how a number of European countries have reacted to various European initiatives to establish general principles governing the use of imprisonment and the manner of its implementation. It seeks to draw some preliminary conclusions about the impact of the increasing emphasis on pan-European standards and principles in this area. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

My paper examines the failure of UN transitional missions to develop the capacity of East Timor's defence counsel during its hybrid court Serious Crimes Process from 2000 to 2005. In keeping with changes in UN peace-keeping operations policy, UN Transitional Authority in East Timor and its successor missions were given a responsibility to develop the capacity of judicial institutions in East Timor. One of the rationales behind the move from fully international courts to mixed domestic/international criminal courts is that involvement of local lawyers and judges will help develop their professional abilities as they learn from their more experienced international counterparts. While it had a level of success in developing prosecutorial capacity and the skills of judges, the UN failed completely in relation to defence counsel. My paper examines the nature of this failure. I argue that the failure to develop defence capacity is due to an omission to provide adequate personnel and the alienation of local lawyers from the defence process. Furthermore, I argue that the prioritization of the short-term political goals of transitional justice which emphasise a prosecution-driven speedy series of trials and where fairness is a secondary concern has taken precedence over a more long-term approach which would emphasise the need to use the trials to demonstrate how high standard fair trials operate and to develop the professional abilities of local lawyers. My paper will conclude by suggesting how the UN should alter its approach if their commitment on paper to capacity-building in hybrid courts is to be realised ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper presents comparative analyses of the importance of civic legal participation in Japan and the U.S. This is a unique moment in the history of the Japanese legal system, as the Japanese Government hopes to introduce the quasi-jury system and begin its first trial in 2009. In order to examine whether popular civic participation is effective to democratize the criminal process and to build broader public confidence in the system of justice, individuals who have participated in a civic legal decision making process are contacted and interviewed in both Japan and the U.S. Japan has the law of the inquest of prosecution to publicly examine prosecutorial charging decisions, and it is periodically done by the prosecutorial review commission (PRC) composed of a group of randomly chosen citizens from the local community. Its purpose is similar to that of America's civil grand jury, which has the authority to examine and inspect the proper functioning of local public offices including DA's office. While PRC decisions historically had no legally binding authority, the 2002 legal reform gave the PRC the legally binding power to initiate changes in prosecutorial decision-making. Similar to the experience of serving in civil grand juries, it has been reported that the civic legal participation in the review board has also led to an increasing awareness of the importance of their participation and the confidence in the system of government. Our paper presents a number of important findings from the cross-national data collected in Japan and the U.S. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper will show that around 1900 southern lynchings and a northern death penalty system based on the electric chair, were different and deeply entangled at the same time. The paper will focus on Georgia, one of the most lynch-prone States in the U.S., and it will argue that, in the early decades of the twentieth century, the south gradually adopted the north's seemingly civilized methods of execution as a substitute for judge lynch. Lynching was perceived as socially destabilizing and shameful among an increasing number of Southerners, and after his introduction in Georgia in 1924, the electric chair became a major instrument used to uphold a racist social order. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Problem-solving courts have caused a paradigm shift in the criminal justice system, or so the advocates claim. Whether one agrees or not, fact is that over the past decade problem-solving courts, and most notably drug courts, have spread rapidly throughout the United States and are being introduced in other (common law) systems as well. The day-to-day business of problem-solving courts has been well documented. Theoretical analysis has not kept pace with these empirical studies and is focused primarily on therapeutic justice and (to a lesser extent) on restorative justice. In her paper the author will concentrate on theoretical aspects of problem-solving courts by introducing a new viewpoint: Nonet and Selznick's theory of responsive law which provides an excellent analytical tool for understanding the purposive nature of problem-solving courts. As is the ambition of 'responsive law', problem-solving courts are a way of meeting social needs and both advocate a departure from justice blind to consequence. Furthermore, the theory of 'responsive law' also sheds light on one of the major risks of a problem-solving court, namely its potential repressive features. The author's paper will build on current research for her doctoral thesis at the Erasmus University Rotterdam and on previous more empirical studies conducted as visiting scholar at the Center for the Study of Law and Society of UC Berkeley (2003-2004). ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Over the last several decades, there has been a proliferation of U.S. legislation easing the process of treating children as adults in the justice system, leading to an increased number of youth transferred to the criminal court. This increase raises questions concerning the meaning of the "adult" label for juveniles tried in the criminal court, with regard both to processing and outcomes. Some scholars have suggested that the juvenile justice process is "reproduced" for juveniles in the criminal court setting (Singer et al., 2000). Kupchik (2003) provides a nuanced view of the reproduction of juvenile justice in the criminal court by arguing that the criminal court processing of juveniles is "bifurcated" - the adult model is followed up to sentencing, but sentencing resembles more of a juvenile model. Using both quantitative and qualitative data, this paper adds to this literature by focusing on the way that the "adult" label is negotiated by court actors in an urban court in Michigan. In part, the findings support the bifurcated model proposed by Kupchik with regard to the procedures applied by the court. The paper finds, however, that the "adult" label is contested throughout the criminal court process through negotiations over the "redeemability" or "salvageability" of juveniles that are manifest in plea negotiations and strategies. These negotiations are influenced by organizational contextual factors, including the power and role of specific actors and the loosely coupled nature of processing in the criminal court. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Over the past few decades, we have progressed from the long-held view that condoned or ignored domestic violence, to a recognition that it is a criminal justice and policy issue that demands public attention. However, with greater state involvement, has come concern that battered women are being denied the ability to make independent choices for their future, and their safety. This paper examines the legitimate concerns that must be addressed from within the battered women's movement, while also exploring how conservatives, men's rights advocates, and "pseudo-feminists" are attempting to exploit divisions within the movement to promote broader public policy and criminal justice agendas. The paper concludes with suggestions for improving public response to domestic violence, without permitting these regressive groups to use battered women for their own purposes. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Mandatory policies governing the use of arrest and prosecution in domestic violence cases have been adopted by police departments and state's attorney's offices across the country. Together with orders of protection and batterer intervention programs, mandatory arrest and prosecution represent central pillars in a new regime of gender violence governmentality (Merry 2001, 2002) emphasizing the discipline and punishment of offenders and security of victims. For the men responsible for intimate partner abuse, these punishments are intended to 'teach a lesson' that will deter them from violence. To date, however, little research has been conducted with batterers to gauge the impact of these policies. This paper fills that gap, using in-depth interviews with 30 persons arrested and prosecuted for domestic violence to examine abusers' experiences with mandatory arrest and prosecution and the meanings that these punishments hold for them. The paper's findings provide grounds for pessisimism regarding these measures' efficacy. Not only did many abusers resort to new forms of coercion in an effort to ensure their victims' cooperation against the state's prosecution of criminal charges, but most understood their punishments as unjust sanctions motivated by legal authorities' biases against men, minorities, and the poor. Further research is required to determine the generalizability of these findings as well as the feasibility of alternative criminal legal interventions that could better transfigure batterers' abusive subjectivities. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Criminal legal aid has been in existence in Turkey since 1992 yet neither its effectiveness nor its quality has ever been evaluated. Until recent amendments, data made available by local Bars indicated that the accessibility rates were low. This paper focuses on the influence of the legal culture and the understanding of the lawyering profession in Turkey. It especially looks at how lawyers define their own position in the system and how they evaluate their responsibilities. The data analyzed here has been collected as part of our project on access to criminal legal aid in the courts of Istanbul. Goal of the project was to evaluate the effectiveness as well as accessibility and quality of the legal aid provided, through a variety of methodologies. Here, some of the basic data from case files reviews, hearing observations and from the 25 interviews with lawyers who provide the service will be discussed for a better understanding of the prevailing culture of the legal profession and for presenting what lawyers see and experience as major problems with regard to the current legal aid system. The paper includes a list of suggestions for the improvement of the delivery of the criminal legal aid, both those identified by lawyers, as well as those developed by the authors. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Corporate crime is a fairly new concept in China. It raises more and more attention in criminological and legal academia recently, since corporate crime may cause property damage, financial loss, serious physical injuries and even death. It is argued that, although the cost of corporate crime is much greater than traditional violent crime, the criminals in corporate crime cases usually receive less attention, less prosecution and less punishment. The Chinese judicial system roots in continental European traditions. Therefore, the courts and judges do not have much discretion in their rulings but have to follow the statutory law. Also, previous judgments do not have a binding authority to future judicial decisions. This paper will first discuss some recently revealed workplace "accidents", which are more accurately put as "corporate crime cases" in the author's point of view. Then, it will review the relevant criminal law and regulatory law which courts could refer to in respond to the accident, if liable personnel were prosecuted. However, in reality, the local court plays a limited role in terms of protecting the corporate crime victims or punishing the liable personnel. This paper argues that, the court should be granted more discretion in dealing with corporate crime cases in order to best protect victims and deter potential illegal corporate behavior, since with the growth of privatization, corporate crime against consumers, employees, environment, financial market, etc. will be more likely to be observed in China. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores the relationship between the growing popularity of lethal injection as a form of capital punishment and the movement to publicize executions. It focuses specifically on the obvious but often overlooked fact that as the movement to publicize gains momentum -- with the support of both opponents and proponents of capital punishment -- the actual practice of execution is becoming invisible. This paper explores the irony of this situation in order to point out its serious ramifications for a society that values its right and ability to know what the state does in its name. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

This paper analyzes the last ten years of intense criminal procedure reforms in Latin America. The paper argues that the reforms have been at the intersection between three discourses: law and development, democratization, and Latin American due process, and that in order to understand some of the shortcomings of the reforms it is helpful to analyze the limits of each of these discourses as well as the tensions between them. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

This paper provides a model to foresee some potential problems of lay participation in the current on-going justice system reform in Japan. In order to achieve the popular base of the justice system, a new lay-participation system, Saibanin-seido (civil judge system), is to be introduced in criminal proceedings in 2009. In this system Japanese lay judges will serve a term of only one case; however, they will deliberate and decide the case together with professional judge(s). As the deliberation body will generally consist of three professional judges and six lay judges, the actual and active participation of civil judges may be difficult to achieve. The model called Linguistic Legal Model, which is a combination of Layer Analysis and Register Analysis, is intended to explain the discrepancy between legal experts and lay people. Layer Analysis frames a theatre-type concept to gain different types of perception affected by a variety of norms of differing layers. Register Analysis aims to identify linguistic characteristics of one legal genre, judgment paper. Layer Analysis elucidates the structure of law and society, whereas Register Analysis examines the structure of legal language. The model is like a two-wheeled vehicle of Layer and Register Analyses, in which the two wheels are indispensable for the operation of the vehicle. With the movement of the two wheels Linguistic Legal Model can illuminate the complex interaction among law, language, and society. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

The most distinctive feature of restorative justice is its use of a victim-centered response to crime with the goal of successful reintegration of both victim and offender as productive community members. In Confucian East Asia, reciprocity, mutuality, and harmony have been stressed as essential concepts of successful community life. These concepts are at the heart of restorative justice initiatives. This paper examines the developments of the restorative justice programs in New Zealand, Australia, and other Western countries. It then probes the ways in which such programs can be implemented in East Asian context. Special attention will be paid to the Korean traditional ideas similar to restorative justice and considers appropriate ways to adapt these ideas to restorative justice programs in contemporary Korea. [ABSTRACT FROM AUTHOR]

Conventional debates over risk in criminal justice (and more generally) tend to fall into several traps. These include the assumption that diverse configurations of risk can be collapsed into a single category, to be contrasted en bloc with other approaches to government. However, by attending to the diversity of forms of risk we can begin to develop certain principles that could be put forward as tools for thinking about the promise and limitations of ways of governing by risk. Through contrasting actuarial justice with a number of other configurations of risk-centred government, such relevant issues emerge as whether specific techniques or risk are inclusive or exclusionary, whether they set up a zero-sum game between victims and offenders, and whether they polarize risk and uncertainty. While this is promising, the paper also concludes that a democratic politics of security may provide more promise than a politics of risk per se. [ABSTRACT FROM AUTHOR]

Chinese police are experiencing one of the most drastic changes since the establishment of the People's Republic. The beating to death of a University student in one of the police detention facilities in Guangzhou has shocked the consicence of the nation, and has triggered the most serious police reform in the history of the People's Republic of China. This paper attempts to assess the reform and its implications for the future of Chinese police. [ABSTRACT FROM AUTHOR]

The hallmark of penal practice among male correctional subjects has been the discipline of labor force participation, as Simon (1993) argues. But the burgeoning numbers of females in American correctional systems pose a challenge to conventional (masculine) penal strategies. I argue that the realm of intimate relations, especially those with children, has become a crucial site of penal discipline for female offenders. This paper examines how the state, in its attempts to produce autonomous, choice-making subjects, targets motherhood and other expressions of women's relational life, as the core of its correctional project. I studied parole hearings and two specific examples of correctional programs (parenting classes and cognitive skills classes) to reveal the sorts of subjectivities that are imposed upon women. However, for this group of women, among whom choices often come as impossible dilemmas and for whom the conditions of motherhood are marked by isolation, violence, and addiction, there is a formidable gap between the objectives of penal practices and what women can actually achieve after prison. [ABSTRACT FROM AUTHOR]

Previous literature suggests that, while the contact with the criminal justice system typically weakens the level of public support for the police, the jury experience seems to be an exception. This paper examines attitudes about the police held by actual jurors who served in non-capital felony jury cases in New York, California, Arizona, and Washington, D.C. The results indicated that the overall trust in the court system and case-related variables, particularly views of police testimony in the case, are related to the jurors' general perceptions about the police. Of all demographic variables, race was the strongest correlate, followed by the degree of religiosity. [ABSTRACT FROM AUTHOR]

American prosecutors have embraced policies intended to prevent domestic violence against women. Some virtually promise victims protection from continuing abuse if they cooperate with the state's attorney in bringing a case to justice. However noble the promise, it calls for victims to make a risky commitment to go forward, often on a misunderstanding of prosecutorial interests. Some prosecutors insist that they prosecute on behalf of the state with a goal of punishing to prevent violence against all women, not a specific victim. Others allow that the specific victim can expect protection as a witness for the state's case until it is settled, but view protection from later recurring violence as incidental to their goal of general prevention. Still others give primacy to each victim's interests in determining a course of prosecution most likely to protect her from future violence at the hands of the defendant. This paper discusses the historical-legal context of these alternative perspectives and their associated policies and practices. It assesses each perspective in light of extant empirical research on its preventive impacts. [ABSTRACT FROM AUTHOR]

This paper examines what constitutes "the state" in state control of prisoners' reproductive lives. The exercise of state authority in this realm has a disproportionate impact on low-income people of color, given the racial and class dynamics of the criminal justice system in the United States. In practice, "the state" is often a multi-layered, internally conflicted, and public-private hybrid institution. Legislatures, administrative agencies, courts, and individual prisons, jails, and detention centers may all play a role in the official regulation of prisoners' rights, such as access to abortion, special programs for pregnant women or mothers, or the ability to provide semen to a partner in the free world. Private, for-profit medical companies that provide the majority of medical care to prisoners also formulate policies and regulations. The elusive nature of state regulation has a direct impact on prisoners' health, identity, and futures, extending into the aftermath of imprisonment that affects parental rights and custody of children. To explore the problem of state authority, I will analyze examples of conflicts between prisoners (focusing primarily on women) and prison officials, drawing on court records, interviews with advocates, and materials written by prisoners. [ABSTRACT FROM AUTHOR]

During Soviet era lay participation in criminal and civil process had a form of people's court: one professional judge and two lay assessors. Lay assessors did not play significant role because selected from population the loyal to the communist regime they usually agreed with everything proposed by the professional judge. Thus people labelled them 'nodders' (from the verb 'nod' - expressing assent). After the Soviet Union collapsed new independent countries began to carry out reforms of the administration of justice. The majority of countries excluded the lay people from the decision-making process in criminal and civil trials. Russia replaced lay assessor courts by juries called only for trials on serious felonies. Several countries consider the possibility of lay people involvement in adjudication either in a form of jury (Ukraine, Azerbaijan) or/and lay assessors courts (Ukraine, Kazakhstan). The focus of the present paper is the analysis of the existing models of lay courts in NIS and related draft laws. Taking into account of the specific socio-political environment of these countries the author criticizes the form of collaborative (mixed) courts and advocates the introduction of the institution of the jury. [ABSTRACT FROM AUTHOR]

Domestic violence as defined by our criminal justice system bears little resemblance to the abuse inflicted on over half a million women by intimate partners each year. The disconnect between battering as it is practiced and battering as it is criminalized is vast and it is significant. Law's failure to define accurately the nature and harm of domestic violence negates the experiences of victims and effectively places battering outside the reach of criminal sanctions. The criminal justice system's structurally deficient response to harms suffered largely by women percolates outside the boundaries of law, warping social understandings of domestic violence. Premised on a transactional model of crime that isolates and decontextualizes violence, law belies the reality of an on-going pattern of conduct occurring within a relationship characterized by power and control. In this paper I explore the rupture between women's experiences of battering and the remediation provided by the criminal law. I conclude that statutory descriptions of battering are inapt and require an overhaul to capture the practice of domestic violence. Domestic violence is generally understood — outside the criminal law — as patterned in nature and largely defined by non-physical manifestations of domination. Part Two describes these dynamics, focusing on the centrality of power and control to the battering relationship. This Part then examines how criminal law paradigms, developed when violence against wives was lawful, operate to obscure the quintessential nature of domestic violence. By situating the criminal justice response to domestic violence in historical context, current paradigmatic limitations may be better understood. Viewing the criminalization of battering as an evolutionary process also suggests the potential for further reform. Part Three maps the contours of the gap between battering as it is practiced and battering as it is criminalized. To illustrate how law functions to provide a diminished measure of justice, I consider how a case involving battering progresses through the criminal process. This Part then examines the ways in which flawed paradigms warp the trial stage of the proceedings. Criminal law's myopic focus on transaction-based physical violence critically impacts the ability of jurors to function effectively. Law's failure to account for the practice of domestic violence subverts victim credibility, obscures the batterer's motive and fosters juror apathy. Despite a gaping disconnect between the suffering of battered women and the legal apparatus in place to redress harm, we might wonder if the system manages informally to mediate the space between life and law. Part Four posits that socially lived reality pressures incompatible legal structures, creating tensions and ambiguities within existing criminal evidentiary law. This Part explores places in law that have been shaped by the actualities of battering: the admission of 'prior bad acts' evidence in the context of domestic violence prosecutions, expert testimony on battering, and the application of anti-stalking laws. These pressure points function as mechanisms for a limited measure of legal accommodation to alternative realities. I will suggest that the sites where law is sufficiently malleable to yield are significant less for their remedial power than for what they mark: both the rigidity of fundamental structures and the force of incompatible stories yet unheard. Part Five discusses the normative implications of criminal law's failure to define domestic violence as it is practiced by perpetrators and experienced by victims. I contend that law's legitimacy in this realm is challenged by the location of battering outside the reach of criminal sanctions. In this Part, I also consider how victims are impacted individually and collectively by this mislocation, as well as how societal understandings of battering are constructed by the legal definition of domestic violence. Finally, Part Six suggests that to connect law to the lives of battered women, criminalization of domestic violence must reflect the on-going and patterned nature of battering. In essence, this Part urges a reconceptualization of the crime of domestic violence that accurately reflects its true nature and harm. [ABSTRACT FROM AUTHOR]

For a long time the privileged basis for penal ethics has remained within the Kantian paradigm of just deserts. This paper dissents from that 'hardhearted' legacy and looks to theorise the significance of suffering and compassion to criminal justice. Through a reading of Levinas' text 'An Eye for an Eye', we will consider that drama integral to the humanizing of justice. [ABSTRACT FROM AUTHOR]

The criminal response to state-sanctioned crimes after a regime change is often viewed and analyzed as part of the more general process referred to in German as Vergangenheitspolitik, in English as transitional justice, and in French as gestion publique du passé. The primary merit of these terms is that they accentuate the achievements of the criminal justice system in the overall process of a state coming-to-terms with a dictatorial past. These terms, however, terms are too tightly chained to the short period (courte durée) of political transition directly following a regime change. They often fail to take into account one of the main characteristics of the research field 'historical justice.' Despite the significant juridical dimension of state responses to the past, the middle and long duration of legal categories, jurisprudential constructions and the habitus of those who use these categories (especially prosecutors and judges) are often not taken into consideration. This is also true of the long duration of prosecutorial activity (the Zentrale Stelle still conducts investigations into Nazi crimes some sixty years later). The neglect of longue durée in research of criminal prosecution of GDR crimes is that much more surprising, because the circumstances created by unification were very atypical. After purging the GDR judicial system of two-thirds of its judges and prosecutors, most of those trying and deciding criminal cases involving former GDR citizens were from West Germany. The past experiences of the West German state's legal establishment therefore play a decisive role, especially with its long history of cases for state-sponsored crimes, and this paper proposes a 'non-transitional' approach incorporating short-term and long-term historical considerations as well as legal and sociological methodologies. [ABSTRACT FROM AUTHOR]

In this paper, my co-author (Milton Heumann, Rutgers University) and I discuss the unique potential of the focus group method for exploring public attitudes regarding the laws and policies of our criminal justice system. As compared to more traditional polling and survey techniques, a focus group approach affords the researcher the opportunity to interact with respondents, thus allowing for greater elaboration of views and values. Participants (generally 8-10 adults) are presented with a series of general and specific questions and hypotheticals regarding the nature and purpose of the criminal justice system and are then asked to discuss their degree of support for various policies and the reasoning that led them to such conclusions. With the opportunity to ask for clarification, examples, and/or additional justification, scholars who use focus groups can, in some ways, arrive at a "truer" and more nuanced—if not generalizable—sense of public opinion on issues of great consequence, but often low salience. Finally, focus groups provide the forum and invitation for respondents to interact with one another—to deliberate like a jury might—and to learn from each other, thus encouraging (as we have seen in our focus group studies thus far) a process of opinion change as individuals reflect on others' points and insights throughout the 11/2-2 hour-long session. [ABSTRACT FROM AUTHOR]

Military courts have much broader powers to grant leniency and clemency than do civilian courts. This paper examines the differences and shows how they illuminate the character of mercy in our culture. [ABSTRACT FROM AUTHOR]

This paper will examine how identify verification systems - such as the new UK National Identity Card Scheme - are increasingly being used by national governments for law enforcement purposes and to secure borders and regulate immigration. In particular, it focuses on the way in which these systems - often initially promoted as a means to streamlining government and improving the delivery of public services - are being co-opted into the general security and surveillance apparatus of the state, often in the absence of robust regulatory frameworks. In addition, it will examine how identification systems are being used to redefine our understanding of citizenship and draw questions of nationality and status into discussions about domestic crime and national security. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper revisits the emerging discussion over the bureaucratic incorporation of immigrants that suggests that immigrants may be incorporating faster into local level bureaucracies than in the electoral arenas. Previous scholars have focused on the primary role of professional missions, contending that service oriented bureaucracies are incorporating undocumented immigrants more quickly than those that also have a regulatory duty. Drawing on interviews with representatives at institutions of higher learning and labor standards enforcement agencies, we argue for a more refined understanding of the varying legal opportunity structures driving bureaucratic incorporation, and the different forms of rights inherent in each (i.e. demanding protection versus opportunity.) First, we argue that it is important to distinguish administrative versus litigious regulatory bureaucracies, because immigration status plays a very different role in the resources required to navigate each. While undocumented immigrants may be particularly disadvantaged in law enforcement and courts because they have a harder time accessing legal counsel, other regulatory agencies such as labor standards enforcement follow primarily administrative processes for which this is less consequential. Secondly, we push scholars to be more specific about the rights being invoked in these acts of legal mobilization. In the case of higher education, undocumented students in California are engaging in a political project that demands opportunity for future success based on a long history of sanctioned membership in the educational bureaucracy. Conversely, undocumented workers filing wage claims are demanding recourse for work performed and must confront their formal excluded status from the workplace. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper focuses on the construction of the "criminality" of immigrants as the result of the perception of mainstream society of immigrants as a threat to American national identity and ethopolitical orientation. It additionally considers the trend of penal populism, as a parallel process, as a factor for perceiving, treating, and punishing immigrants in harsher ways. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines the social and economic rights of Black workers in early twentieth century Chicago through the experiences of strikebreaking. In Chicago race relation were shaped and reshaped by three related development: the Great Migration, which placed constitutional freedom in economic terms, the Race Riot, which developed from frustrations with obstacles to economic opportunity and the Supreme Court's decision in Lochner v. New York, which announced that classical liberal economics governed wage work. The Lochner decisions also affirmed the criminalization of dependency and celebrated steady wage work as the principal element of independent, economic citizenship. However, the Court did not recognize that different people held different rights and that the absence of rights often translated into obstacles to steady employment, fair wages and decent housing. As a result, many Black workers were pushed into poverty and branded dependents, or "problems". In examining the experiences of black strikebreakers, I argue that these workers understood their experiences in constitutional terms, that they contested the circumscription of their rights, demanding an economic right to work, a social right to public space, and in doing so rejected efforts to orchestrate black dependency in the city. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The universality principle is a theory of jurisdiction where a State, acting on behalf of humanity, may prosecute the perpetrator of a criminal offense based on the nature of the crime itself regardless of the place or the actor. At its 2008 summit at Sharm el-Sheikh, the African Union adopted Decision 199 mandating that its membership not execute arrest warrants based on universal jurisdiction. The AU decision presents three broad objections to universal jurisdiction: first, abuse of application; second, a threat to sovereignty; and third, its destabilizing effects. These objections are based on a procession of attempted prosecutions of African leaders: Yerodia and Habré by Belgium; Nguesso by France; senior Rwandan leaders by France and, concurrently, Spain; and, the International Criminal Court's cases against Sudanese officials Harun, Kushayb and al-Bashir.This paper examines the normative standards of justice prevalent in the African and European communities. It shows that cognitive dissonance arises because each group believes the other is preoccupied with "idiosyncratic standards" as opposed to "common norms". European States propose that stability follows justice. African States, however, insist that stability is a necessary pre-condition to achieve justice. Both seek to reject impunity, but each prioritizes principles inversely to the other. Thus, the EU insists that the AU is not serious about law and order, and the AU believes that the EU is trampling on their sovereignty. Cooperation requires a definitional realignment in the AU/EU relationship; the universal jurisdiction argument is just one aspect of that process. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The problem of drug addiction has been of increasing concern to the Chinese authorities. Whilst drug addiction itself is not characterized as a criminal offence, it is seen as causing serious social harm and as being closely related to a range of criminal activities. To date, the authorities have used a range of measures to cure drug addiction including the police detention powers of coercive drug rehabilitation and, for recidivist drug addicts, re-education through labour. These strategies have not been very effective. In 2007 the Drug Prohibition Law, passed by the NPC Standing Committee, introduced a more comprehensive approach to addressing problems of drug use and addiction. This paper examines the extent to which this law reflects a change in attitude about how to address problems of drug addiction and gives a preliminary evaluation of the implementation of the law. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper addresses a very common (albeit elusive) phenomenon, which we refer to as "inequitable enforcement": law enforcement actions which, while legally authorized, violate basic notions of fairness and common sense. Pretextual stops for minor traffic violations, arrests for petty offenses, and searches in cases in which there is usually no enforcement, might fall into this category. We begin by identifying a series of parameters for measuring inequitability: the type of law broken, extent of public knowledge about enforcement policies, location of the illegality within the gap between legal prohibition and enforcement limitations, intensity of police response (as well as its proportionality to the offense), and offender demographics. We move on to discuss law's potential for, and limitations in, addressing inequitable enforcement, by considering two mechanisms: the Fourth Amendment reasonability requirement and the Equal Protection clause. Our analysis uncovers the limitations of constitutional discourse in considering common sense and reasonability, and demonstrates how traditional doctrinal analysis relies on technical categorizations. The Fourth Amendment relies on the level of suspicion as the almost exclusive measure of police reasonability. Similarly, the Equal Protection clause identifies inequalities in enforcement only when an "underlying discriminatory narrative" is discernible, most often through the identification of a suspect class. Our argument uses intuitive common sense, as well as insights from systems theory, to problematize the boundaries of these legal constructs. Finally, we analyze the possibilities, potential and pitfalls of bringing inequitable enforcement into the realm of legal considerations. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The International Criminal Court became active on July 1, 2002. The United States has not become a state-party to the Court. One of the major concerns that the United States has with the International Criminal Court is the Court's trigger mechanisms by the independent prosecutor or a referral by a state-party. The United States fears that the trigger mechanisms may be politically influenced. This paper analyzes how the fear of prosecution is unfounded; however, evidence is provided supporting the fear of an indictment if the United States becomes a state-party to the Rome Statute is well-founded. Positive and negative implications of an indictment by the International Criminal Court against an American political or military official are also considered. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Scholars of punishment are, broadly speaking, in widespread agreement that a paradigmatic shift occurred in the last quarter of the twentieth century during which a focus on rehabilitation and treatment gave way to a more punitive focus that has led to what some have described as warehouse prisons. Despite some theoretical and empirical work questioning the degree to which rehabilitation really dominated in the first place (i.e., penetrated beneath the surface of rhetoric), there are few empirical, longitudinal efforts to understand how life actually changed "on the ground" for those living and working inside carceral facilities. In this paper I treat California's prison fire camps (officially called the Conservation Camp Program) as a test case with which to plumb the depth and breadth of macro-level trends in punishment so often recited by commentatorsâ??in the process seeking to demonstrate that shifting trends may not be as linear or as neat as once imagined. In particular, I argue that individual elements of the larger carceral system may adapt to changing political climates in a way that repackages existing programs, thereby avoiding transforming the programs themselves. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Recent years have seen an increase in the criminal penalties associated with possession of child pornography. This paper assesses the theoretical and policy problems raised by these new, harsher penalties. The arguments in favor of the increased penalties revolve, in most instances, around the harms of child sex abuse; yet the connection between possession of child pornography and physical abuse is far from direct. Indeed, to the extent that significant criminal justice resources are expended in the prosecution of child pornography possession, it may inappropriately signal to the public that child sex abuse is somehow "under control." Possession of pornography prosecutions may be more attractive to law enforcement because they do not raise the evidentiary difficulties associated with child testimony of physical abuse, they are not limited by the international origins of much of the available child pornography images, nor do they expose the personal relationships between victims and offenders that underlie most physical sex abuse cases or cases of child pornography creation. But there is a danger that possession prosecutions will be seen as an alternative to prosecutions of those who directly abuse children, and that an assumption will be made that a particular possessor is or will be directly responsible for physical abuse. There is oft-identified harm that is unique to the possession of child pornography namely the humiliation a victim suffers each time someone views the images; however, this harm does not appear to provide sufficient justification for the increased penalties associated with possession. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

One of Dianne's last publications was a study of police accountability and the harm done to the image of the police in general by either deliberate or careless acts of omission and commission. The continuum of state accountability law involves many themes, all of which must be balanced in order to effectively achieve state accountability. One of these themes is the role that racialized justice plays in defining the common law. Canadian courts have recognized that "racialized justice", as opposed to the English formation of "individualised justice", is necessary in ensuring that the common law is structured in a manner that is consistent with the equality and accountability principles expressed in the Charter. A skeptical approach to policing requires courts to craft duties in a manner that will ensure accountability for potentially bad policing. This paper will analyze and attempt to rationalize recent developments in the tort law of state accountability. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Nearly 2 million Cambodians perished at the hands of the Khmer Rouge regime between 1975-1979. An internationalised criminal tribunal has been established to hold those most responsible accountable for their egregious crimes. Significantly, this Tribunal grants victims unprecedented rights to participate in the process as parties to the proceedings, with co-extensive rights vis-à-vis the prosecution and the defence. Some have hailed this process as a testament to restorative justice. Based on a case-study of the pre-trial phase of this process, this paper examines the conflicts which have arisen between victims and the other actors in the Tribunal and consider if this victim-centric approach is likely to serve the goals of restorative justice - i.e. restore the victims' dignity, empower them and lessen their isolation. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In this paper, I identify and explore a tension in American criminal procedure between two idealsâ??the ideal of equality (roughly, treating like cases alike), and the ideal of individual desert. This tension is famous from the death penalty context, where it is memorialized by Justice Stewart's famous comment in Furman that the death penalty is "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Thus, it is argued that those who receive capital sentences are unfairly singled out, since they are no more deserving of death than other "death eligible" defendants who do not receive capital sentences. Others respond by pointing out that as long as they are deserving of it, then the rarity of an actual capital sentence merely demonstrates our leniency. And so long as no one is treated more harshly than he or she deserves, how is it an objection if some are treated more leniently? I propose to reframe this familiar conflict by suggesting a neglected understanding of equality: equality not of outcomes, but of opportunity to be punished. The idea is familiar from other contexts, e.g. the selection of individuals for the draft. I will describe analogous cases, and the principles governing the use of randomization as a means for distributing benefits and burdens, and discuss their application to several aspects of criminal procedure. The upshot will be to provide a best-case framework for the justification of some of the most troubling features of American criminal procedure. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In this paper, I explore some of the ways in which mock jurors react to the evidence in a capital penalty phase trial and how emotional responses are narratively expressed and persuasively used in the deliberation context. Within this exploration, I discuss the impact of the racial dynamics of the case on this process. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]