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Theorists treat liberty as a great equalizer. We can't easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about "equal liberty" is meaningfully equal. To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment. Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness. In this manner, equally blameworthy offenders are said to receive equal punishment when incarcerated for the same period of time. Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for. Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal. [ABSTRACT FROM AUTHOR]

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others' interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly (or may have benefitted undeservedly). [ABSTRACT FROM AUTHOR]

Copyright of Hungarian Law Enforcement / Magyar Rendészet is the property of National University of Public Service and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This Article examines the development and efficiency of the procedure for correction of a clerical mistake in a judgment in the Israeli law. As is well known, the procedure offers a short and simple way to correct an error in language within a decision. The litigants may file a motion to correct a decision in the same court that granted it, without having to file an appeal in the appellate court. The difficulty, however, is that this procedure contains three fundamental flaws that might even hinder its purpose: First, the law binds the parties and the court to the same number of days to correct the decision, instead of first determining a fixed time period for the parties to submit a motion and only thereafter the time period for the court. Second, the law does not allow to independently appeal the decision on the motion for correction. Third, this procedure does not include a mechanism that "freezes" the time period to appeal the first decision. The resulting parallel race in time between two procedures forces the parties to simultaneously implement them both: error correction in the court that gave the decision and appeal in the appellate court. This Article proposes a new model based on the arrangement in American law on this issue. In response to the first of these flaws, it suggests adopting principles from a similar procedure which historically faced the same concerns, the procedure for cancelling an ex parte decision. With respect to the second flaw, it proposes allowing a litigant to separately appeal the second decision - the decision on the motion for correction. Regarding the third flaw, this Article recommends "freezing" the time to appeal the first decision, the actual judgment, so that it will begin only when a decision is granted on the motion for correction. This is a sort of statutory extension for filing the appeal. Such a solution for the third flaw will in any event also resolve the first one. This Article examines the procedure under the American legal system that also dealt with similar difficulties. In addition, it establishes a foundation for the proposed modifications and offers new language for the relevant law. [ABSTRACT FROM AUTHOR]

In 2018, the Corrective Services Administrators' Council updated the Standard Guidelines for Corrections in Australia (2012), renaming them the Guiding Principles for Corrections in Australia. This was an opportunity to ensure alignment with the 2015 United Nations Mandela Rules. However, the Guiding Principles are less aligned with the Mandela Rules than the 2012 Guidelines were. That is, they represent a step backwards. This article examines this missed opportunity to improve prison practice in three areas of frequent human rights violations of imprisoned people: (1) solitary confinement, (2) bodily searches and (3) use of restraints. It argues that the ACT Standards for Adult Correctional Services provide an excellent model for national guidance that should replace the Guiding Principles. [ABSTRACT FROM AUTHOR]

The article argues that force-feeding pretrial detainees is unconstitutional. Topics discussed include the fundamental right to refuse lifesaving hydration and nutrition, the history of force-feeding, and the treatment of fundamental rights within prisons. Also mentioned are the distinctions between pretrial detainees and prisoners, force-feeding as punishment, and government interest in preserving a detainee's life to trial.

The number of women, especially Indigenous women, that are incarcerated in Canadian federal penitentiaries and segregation units has steadily increased over the last decade. This article provides an intersectionality-based policy analysis and uses a case study of one Indigenous woman to examine how federally sentenced women experience segregation and the issues of inequality that are exemplified by their over-representation in this most austere form of holding. We explore the gendered and racialized ways in which the Correctional Service of Canada (CSC) interprets the behaviours, attitudes, and even personalities of the women they place in segregation. By examining mental health, gender, and culturally responsive policy within the context of risk/need management, we conclude that the CSC does not protect marginalized women via policy but, rather, converts the needs of marginalized groups into risks to be managed. We also identify alternative policy responses and solutions aimed at producing the social and structural changes that are necessary to reduce socially unjust correctional policy and practice. [ABSTRACT FROM AUTHOR]

Oral history is the only past record in many Aboriginal groups in Canada. In 1997, in Delgamuukw, the Supreme Court of Canada recognized that the strict approach to evidence law with respect to oral history had to be relaxed for Aboriginal peoples to be able to pursue claims to Aboriginal rights or Aboriginal title. This was a necessary element of the attempt to achieve reconciliation between Aboriginal and non-Aboriginal peoples. Yet, while evidence law has become increasingly flexible when it comes to accommodating Aboriginal peoples, courts have struggled with how to value oral traditions. A review of the case law since Delgamuukw reveals that courts typically find oral testimony evidence admissible but give it little weight. They tend to favour written records when they conf iict with oral testimony evidence. The Eurocentric preference towards written records is undermining the potential for reconciliation. [ABSTRACT FROM AUTHOR]

Abstract Faced with punishing severe offenders, why do some prefer imprisonment whereas others impose death? Previous research exploring death penalty attitudes has primarily focused on individual and cultural factors. Adopting a functional perspective, we propose that environmental features may also shape our punishment strategies. Individuals are attuned to the availability of resources within their environments. Due to heightened concerns with the costliness of repeated offending, we hypothesize that individuals tend towards elimination-focused punishments during times of perceived scarcity. Using global and United States data sets (studies 1 and 2), we find that indicators of resource scarcity predict the presence of capital punishment. In two experiments (studies 3 and 4), we find that activating concerns about scarcity causes people to increase their endorsement for capital punishment, and this effect is statistically mediated by a reduced willingness to risk repeated offenses. Perceived resource scarcity shapes our punishment preferences, with important policy implications. [ABSTRACT FROM AUTHOR]

The overall aim of this study is to explore the judicial sentencing considerations in South Australian criminal cases of violent offenders versus sexual offenders in order to identify aggravating and mitigating factors. A total of 37 cases involving violent offenders (n = 25) and sexual offenders (n = 12) were downloaded from the Courts Administration Authority of South Australia website and subjected to a retrospective content analysis of the text contained in the published judicial sentencing remarks. The results reveal that offender- and offence-related aggravating factors are more salient judicial sentencing considerations in the cases of the violent offenders, whereas victim-related aggravating factors are more salient judicial considerations in the cases of the sexual offenders. Certain mitigating factors that were seen as salient considerations in the cases of the violent offenders - resulting in reduced culpability and a lighter sentence - appear to have had little impact in the cases of the sexual offenders. The implications of the findings for legal practice, social policy and future research are discussed. [ABSTRACT FROM AUTHOR]

It is the fortieth anniversary of the review of maximum sentences by the Advisory Council on the Penal System. This article examines the ongoing issues with setting statutory maxima and reflects on the Advisory Council's review. It argues that when appraising the appropriateness of a maximum sentence, comparison to the maxima of other offences is theoretically grounded. Yet problems arise in practice due to the historical contingency of statutory maxima. It argues that there is too much scope for the rhetorical use of comparison to increase maxima and, indirectly, to drive-up sentencing levels. The time has come for a new review. [ABSTRACT FROM AUTHOR]

An essay, highlighting importance of integrity in criminology research programs in implementing evidence-based programming and practices in the U.S., is presented. Topics discussed role of evidence-based practices in improving correctional programs; characteristics of effective correctional programs; and translating research into practice remains a challenge.

Following national transposition of procedural rights' Directives, various EU and domestic authorities would need to interpret their provisions, including those concerning the right to custodial legal assistance. To inform this interpretation, account must be taken of the relevant ECtHR case law. However, many of the Directives' provisions are so unclear, and the ECtHR approach is so inconsistent, that to achieve a coherent interpretation, it appears necessary to first identify the principles behind this right. This article examines these principles, in the form of rationales, from the theoretical, jurisprudential, and eu law perspectives. It concludes that the right should be conceived as grounded in a range of rationales, notwithstanding an alternative view that it serves (only) to protect the privilege against self-incrimination. The article fleshes out the consequences of this conclusion for interpreting some of the relevant Directives' provisions, and for criminal defence practice. [ABSTRACT FROM AUTHOR]

This article develops a sociological analysis and critique of including socioeconomic factors such as education, employment, income and housing in risk assessment tools that inform sentencing decisions. In widely used risk assessment tools such as the Level of Service Inventory-Revised (LSI-R) (Canada, US), the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) (US), the Offender Assessment System (OASys) (UK) and the Recidive InschattingsSchalen (RISc) (the Netherlands), socioeconomic marginality contributes to a higher risk score, which increases the likelihood of a (longer) custodial sentence for underprivileged offenders compared to their more privileged counterparts. While this has been problematized in relation to gender and racial/ethnic bias, the problem of socioeconomic bias in itself has received little attention. Given the already marginalized position of many justice involved individuals and longstanding concerns about such disparities, and the adverse effects of imprisonment on socioeconomic opportunities, it is essential to evaluate the unintended social consequences of assessing socioeconomic marginality as ‘risk factor’. Elaborating on earlier critiques, I conceptualize risk-based sentencing as a meaning-making process through which (access to) resources and recognition are distributed among offender populations. Through tracing in detail two cultural processes – stigmatization and rationalization – I analyse how risk assessment is likely to produce sentencing disparities as well as to reproduce, and possibly exacerbate, social inequalities more generally. [ABSTRACT FROM AUTHOR]

This Article examines the somewhat paradoxical relationship between China's unique innovation, the suspended death sentence (sihuan zhidu), and the aim of global abolition of capital punishment. Under China's criminal law, a two-year reprieve may be imposed together with the death sentence if the court does not find immediate execution to be necessary, and, depending on the convict's behavior during the reprieve, the death sentence may be commuted to life or fixed-term imprisonment. The suspended death sentence may serve as a model for remaining retentionist States to emulate in their movement towards abolition because it is a potentially powerful tool of partial abolition which allows the State to increasingly isolate the use of the death penalty to the most serious crimes and gradually reduce the number of executions. However, implementing the suspended death sentence, in its current form, in retentionist States may conversely legitimate the use of the death penalty for the worst criminals who are regarded as most deserving of such punishment, and impede progress towards abolition. [ABSTRACT FROM AUTHOR]

Copyright of Canadian Journal of Law & Society/Revue Canadienne Droit et Societe (Cambridge University Press) is the property of Cambridge University Press and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The main objective of a parole system is to rehabilitate and reintegrate parolees into society. In Malaysia, lack of such community rehabilitation programmes in addition to problems faced by parole officers are a concern. This paper examines the legal and operational predicament faced by the community officers. This paper adopts a qualitative methodology, and data is obtained from five case studies of regional prisons in Malaysia as well as from the Prison Act 1995 and library-based sources. Findings show that rehabilitating parolees is demanding on the parole officers especially so when the rehabilitation purpose and specific duties of such officers are not covered by the Prison Act 1995. Additionally, operational difficulties such as lack of sharing of information on the parolees' rehabilitation assessment and report from the prisons, the officers' lack of expertise and heavy workloads hamper their work. [ABSTRACT FROM AUTHOR]

The recent case of Bugmy, decided by the High Court in 2013 has been followed South Australia in a number of cases decided by the Court of Criminal Appeal and in the Supreme Court on sentencing for Magistrates Court appeals. In the case of Grose, the Court of Criminal Appeal considered whether Aboriginal Sentencing conferences, mandated by the South Australian Sentencing Act infringed the Racial Discrimination Act 1975. In concluding that it did not do so the court relied upon the recent High Court decision in Maloney, and reflected upon the application for Bugmy principles to consideration of Aboriginal disadvantage, as is revealed by Sentencing conferences. In Pennington, the court considered the significance of particular forms of disadvantage for defendants from remote communities subject to serious intergenerational alcohol abuse and dispossession. This was weighed against the need to protect Aboriginal victims and the provision of individualised justice. In Peters, consideration was given to the use of public intoxication legislation to divert a seriously intellectually disabled petrol sniffer from the criminal justice system. [ABSTRACT FROM AUTHOR]

The article reports the decision of the Court of Appeal of England and Wales in the case "R. v Hyde (Daniel)" related to appeal against sentence laws. Topics discussed include laws related to firearms offences; provisions of Criminal Appeal Act 1968 regarding applications to adduce fresh evidence in appeals against sentence; and the court's function of reviewing sentences passed below and not to conduct a sentencing hearing.

Belgian sentencing is in a period of turmoil. Belgian judges value their independence. Most believe in the desirability of individualized sentencing and resent intrusions on their autonomy. Although many continue to hold classsical views about the purposes of sentencing, new practices and laws, triggered partly by several decades of rising imprisonment rates and recent efforts by policy makers and correctional officials to contain it, have changed the penal landscape. The public prosecutor has increasing authority to divert cases from investigation and from sentencing judges, leading to de facto sentencing powers for prosecutors. Recent and upcoming innovations have created new freestanding sanctions of work penalties (often elsewhere called community service), electronic monitoring, and probation. A more fully bifurcated legal system is emerging with longer prison sentences for some offenses and offenders, including postprison preventive detention, and more community punishments aiming for a reduced use of imprisonment for others. Many judges are unconvinced though about the desirability of reduced imprisonment use for some convicted offenders. It remains to be seen what Belgian sentencing will look like when practices incorporating recent changes have stabilized. [ABSTRACT FROM AUTHOR]

Research Summary The Post Conviction Risk Assessment (PCRA) is a correctional assessment tool used by federal probation officers that identifies offenders most likely to commit new crimes and the criminogenic characteristics that, if changed, could reduce the likelihood of recidivism. We explored how changes in offender risk influence the likelihood of recidivism by tracking a population of 64,716 offenders placed on federal supervision with multiple PCRA assessments. In general, offenders scoring in the high-, moderate-, and low/moderate-risk categories at their initial assessment and experiencing decreases in their risk classifications were less likely to recidivate compared with their counterparts whose risk levels remained unchanged or increased. Conversely, increases in offender risk were associated with higher rates of reoffending behavior. Notably, we saw no recidivism reduction for offenders in the lowest risk category if they received decreases in their overall PCRA scores. Policy Implications This analysis provides officers with crucial information about how changes in offender risk can influence the likelihood of arrest. Probation officers should consider adjusting downward the amount of time and resources devoted to offenders with decreasing risk levels once those decreases have stabilized. Alternatively, probation officers should pay particular attention and allocate more resources to those offenders reclassified into higher risk categories. Finally, probation officers should be cautious about providing resources to low-risk offenders who do not seem to benefit from efforts aimed at reducing their criminal risk factors. [ABSTRACT FROM AUTHOR]