Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocate “terrorism offences in general” while knowing or being reckless as to whether terrorism offences “may be committed as a result of such communication.” This article addresses the merits of these new speech-based terrorism offences. It includes analyses of: the sociological data concerning radicalization and “radicalization to violence”; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and the restraints that the Charter would place on any similar Canadian law. We conclude that a glorification offence would be ill-suited to Canada’s social and legal environment and that even the slightly more restrained new advocacy offence is flawed. This is especially true for Charter purposes given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens, or facilitates terrorism. We are also concerned that the new speech offence could have counter-productive practical public safety effects. We favour that part of Bill C-51 that allows for court-ordered deletion of material on the Internet that was criminal before Bill C-51, namely material that counsels the commission of terrorism offences. However, Bill C-51’s broader provision that allows for the deletion of material that “advocates or promotes the commission of terrorism offences in general” suffers the same flaws as its enactment of a new offence for communicating such statements.
{"title":"Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime","authors":"Craig Forcese, Kent Roach","doi":"10.29173/ALR280","DOIUrl":"https://doi.org/10.29173/ALR280","url":null,"abstract":"Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocate “terrorism offences in general” while knowing or being reckless as to whether terrorism offences “may be committed as a result of such communication.” This article addresses the merits of these new speech-based terrorism offences. It includes analyses of: the sociological data concerning radicalization and “radicalization to violence”; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and the restraints that the Charter would place on any similar Canadian law. We conclude that a glorification offence would be ill-suited to Canada’s social and legal environment and that even the slightly more restrained new advocacy offence is flawed. This is especially true for Charter purposes given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens, or facilitates terrorism. We are also concerned that the new speech offence could have counter-productive practical public safety effects. We favour that part of Bill C-51 that allows for court-ordered deletion of material on the Internet that was criminal before Bill C-51, namely material that counsels the commission of terrorism offences. However, Bill C-51’s broader provision that allows for the deletion of material that “advocates or promotes the commission of terrorism offences in general” suffers the same flaws as its enactment of a new offence for communicating such statements.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124032927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
H. Anderson, Ann O’Connell, I. Ramsay, M. Welsh, H. Withers
Phoenix activity occurs where the business of a failed company is transferred to a second (typically newly incorporated) company and the second company’s controllers are the same as the first company’s controllers. Phoenix activity can be legal as well as illegal. Phoenix activity has become a significant concern for governments because of the number of individuals promoting illegal phoenix activity, the significant loss of tax revenue it causes, and the recognition of the potentially devastating impact it has on creditors and employees. A key problem faced by regulators is the difficulty associated with identifying whether particular phoenix activity is illegal or not. This report (which forms part of a larger research project) profiles the characteristics of both legal and illegal phoenix activity to assist regulators in formulating education, detection, and enforcement strategies. The report examines the various historical attempts to define phoenix activity and then identifies the following five categories of phoenix activity and provides examples of each: (1) the legal phoenix or business rescue; (2) the problematic phoenix; (3) illegal type 1 phoenix: intention to avoid debts formed as company starts to fail; (4) illegal type 2 phoenix: phoenix as a business model; and (5) complex illegal phoenix activity.The report also examines the role of professional advisors in facilitating illegal phoenix activity, the victims of illegal phoenix activity (including governments, unsecured trade creditors and employees) and two industries (the building and construction industry and the financial services industry) where illegal phoenix activity has been identified as a particular concern.
{"title":"Defining and Profiling Phoenix Activity","authors":"H. Anderson, Ann O’Connell, I. Ramsay, M. Welsh, H. Withers","doi":"10.2139/SSRN.2536248","DOIUrl":"https://doi.org/10.2139/SSRN.2536248","url":null,"abstract":"Phoenix activity occurs where the business of a failed company is transferred to a second (typically newly incorporated) company and the second company’s controllers are the same as the first company’s controllers. Phoenix activity can be legal as well as illegal. Phoenix activity has become a significant concern for governments because of the number of individuals promoting illegal phoenix activity, the significant loss of tax revenue it causes, and the recognition of the potentially devastating impact it has on creditors and employees. A key problem faced by regulators is the difficulty associated with identifying whether particular phoenix activity is illegal or not. This report (which forms part of a larger research project) profiles the characteristics of both legal and illegal phoenix activity to assist regulators in formulating education, detection, and enforcement strategies. The report examines the various historical attempts to define phoenix activity and then identifies the following five categories of phoenix activity and provides examples of each: (1) the legal phoenix or business rescue; (2) the problematic phoenix; (3) illegal type 1 phoenix: intention to avoid debts formed as company starts to fail; (4) illegal type 2 phoenix: phoenix as a business model; and (5) complex illegal phoenix activity.The report also examines the role of professional advisors in facilitating illegal phoenix activity, the victims of illegal phoenix activity (including governments, unsecured trade creditors and employees) and two industries (the building and construction industry and the financial services industry) where illegal phoenix activity has been identified as a particular concern.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122755714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an article titled “The Impact of Right-to-Carry Laws and the NRC Report: Lessons for the Empirical Evaluation of Law and Policy” published in the American Law and Economics Review in 2011, Abhay Aneja, John Donohue III, and Alexandria Zhang report on their inability to replicate regression estimates appearing in the 2005 National Research Council (NRC) report Firearms and Violence: A Critical Review. They suggest that there are flaws in the data that John Lott had supplied to the NRC. This suggestion could sow seeds of doubt with respect to the many studies that have used that data. The source of the replication problem, however, was that Aneja, Donohue, and Zhang did not estimate the correct model specification—a problem that they have acknowledged in subsequent communications. However, in these later communications they do not make clear that the basis for their doubts about the Lott-originated data has disappeared.
{"title":"Did John Lott Provide Bad Data to the NRC? A Note on Aneja, Donohue, and Zhang","authors":"C. Moody, J. Lott, T. Marvell","doi":"10.2139/ssrn.2525625","DOIUrl":"https://doi.org/10.2139/ssrn.2525625","url":null,"abstract":"In an article titled “The Impact of Right-to-Carry Laws and the NRC Report: Lessons for the Empirical Evaluation of Law and Policy” published in the American Law and Economics Review in 2011, Abhay Aneja, John Donohue III, and Alexandria Zhang report on their inability to replicate regression estimates appearing in the 2005 National Research Council (NRC) report Firearms and Violence: A Critical Review. They suggest that there are flaws in the data that John Lott had supplied to the NRC. This suggestion could sow seeds of doubt with respect to the many studies that have used that data. The source of the replication problem, however, was that Aneja, Donohue, and Zhang did not estimate the correct model specification—a problem that they have acknowledged in subsequent communications. However, in these later communications they do not make clear that the basis for their doubts about the Lott-originated data has disappeared.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132904019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article proposes an analysis of the evolution of the British strategy, alone or as part of an international organization, to criminalize the use of offshore financial centres (OFCs). As the analysis focuses on the use of OFCs in their modern shape, it will encompass the decades from the 1960s to 2014. The main objective is to underline the fact that the 2007 financial crisis has triggered a tougher and concerted criminalization of the use of OFCs. Here, the article analyses the whole complexity of offshore finance and the difficulty for governments and the legislator to address this problem.
{"title":"Criminalisation of the Use of Offshore Financial Centres in the United Kingdom","authors":"E. Lefeuvre","doi":"10.2139/ssrn.2932324","DOIUrl":"https://doi.org/10.2139/ssrn.2932324","url":null,"abstract":"This article proposes an analysis of the evolution of the British strategy, alone or as part of an international organization, to criminalize the use of offshore financial centres (OFCs). As the analysis focuses on the use of OFCs in their modern shape, it will encompass the decades from the 1960s to 2014. The main objective is to underline the fact that the 2007 financial crisis has triggered a tougher and concerted criminalization of the use of OFCs. Here, the article analyses the whole complexity of offshore finance and the difficulty for governments and the legislator to address this problem.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115463879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This is a working draft of some legal research on the question of whether political acts of expression done via computers or computer networks (often referred to as hacktivism) could have any viable First Amendment defenses. It analyzes (1) the open access movement and the case of Aaron Swartz; (2) the Computer Fraud and Abuse Act (CFAA) and its potential to suppress speech through the criminalization of computer access point restrictions and the chilling effects on cybersecurity research; (3) the First Amendment generally and (a) software-as-speech theory, (b) the functional aspects of software analogized to expressive conduct, (c) the right to access information, and (d) a forum analysis of computers and the Internet. The article suggests that the current application of the CFAA has chilling effects on speech that is of great public concern. Therefore, courts applying the CFAA should no longer brush aside the First Amendment because all computer activity on the Internet is inherently communicative; software is a form of speech and even the functional aspects of software (in certain cases) could be covered by the First Amendment under the principals of expressive conduct; people have fundamental rights to access certain types of information; and certain computer networks are public forums entitling certain expressive behaviors in those forums to constitutional protection.
{"title":"Unauthorized Expression: Does 'Hacktivism' Have a Viable First Amendment Defense?","authors":"Jerrod Simpson","doi":"10.2139/SSRN.2473245","DOIUrl":"https://doi.org/10.2139/SSRN.2473245","url":null,"abstract":"This is a working draft of some legal research on the question of whether political acts of expression done via computers or computer networks (often referred to as hacktivism) could have any viable First Amendment defenses. It analyzes (1) the open access movement and the case of Aaron Swartz; (2) the Computer Fraud and Abuse Act (CFAA) and its potential to suppress speech through the criminalization of computer access point restrictions and the chilling effects on cybersecurity research; (3) the First Amendment generally and (a) software-as-speech theory, (b) the functional aspects of software analogized to expressive conduct, (c) the right to access information, and (d) a forum analysis of computers and the Internet. The article suggests that the current application of the CFAA has chilling effects on speech that is of great public concern. Therefore, courts applying the CFAA should no longer brush aside the First Amendment because all computer activity on the Internet is inherently communicative; software is a form of speech and even the functional aspects of software (in certain cases) could be covered by the First Amendment under the principals of expressive conduct; people have fundamental rights to access certain types of information; and certain computer networks are public forums entitling certain expressive behaviors in those forums to constitutional protection.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"271 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121020511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, the federal government has adopted an aggressive prosecution policy that targets tax advisors who help their clients evade taxes. Increased prosecutions coupled with the present-day sophistication of tax practice call for a critical examination of the willfulness standard applied to tax advisors who use the Code and Treasury regulations as part of their regular practices. This is something no previous legal scholarship has done. To establish willfulness, the government must show that a person accused of a tax crime intentionally violated a known legal duty. Because knowledge of illegality is an element of the government's tax evasion case, prosecutors must negate a defendant's claim of ignorance or misunderstanding of the law, which is evaluated subjectively. The mistake of tax law defense and the knowledge of illegality standard are anomalies since ignorance of the law usually is not an excuse. The Supreme Court, however, has said that tax law is special due to the need to protect average citizens from prosecution for innocent mistakes made due to the complexity of the tax laws. The same high standard of willfulness that applies to average citizens also applies to tax professionals. This Article aims to do two primary things. First, it demonstrates that consideration should be given to broadening the current willfulness standard as it is applied to tax advisors. Second, it evaluates the suitability of Samuel Buell and Lisa Kern Griffin's work on "consciousness of wrongdoing" as one possible approach to consider. Beyond tax scholars and practitioners, this Article may resonate with those interested in criminal law generally and white collar crime in particular, as well as those interested in issues ofprofessional responsibility.
{"title":"The Criminality of Tax Planning","authors":"Michelle M. Kwon","doi":"10.5744/ftr.2015.1804","DOIUrl":"https://doi.org/10.5744/ftr.2015.1804","url":null,"abstract":"In recent years, the federal government has adopted an aggressive prosecution policy that targets tax advisors who help their clients evade taxes. Increased prosecutions coupled with the present-day sophistication of tax practice call for a critical examination of the willfulness standard applied to tax advisors who use the Code and Treasury regulations as part of their regular practices. This is something no previous legal scholarship has done. To establish willfulness, the government must show that a person accused of a tax crime intentionally violated a known legal duty. Because knowledge of illegality is an element of the government's tax evasion case, prosecutors must negate a defendant's claim of ignorance or misunderstanding of the law, which is evaluated subjectively. The mistake of tax law defense and the knowledge of illegality standard are anomalies since ignorance of the law usually is not an excuse. The Supreme Court, however, has said that tax law is special due to the need to protect average citizens from prosecution for innocent mistakes made due to the complexity of the tax laws. The same high standard of willfulness that applies to average citizens also applies to tax professionals. This Article aims to do two primary things. First, it demonstrates that consideration should be given to broadening the current willfulness standard as it is applied to tax advisors. Second, it evaluates the suitability of Samuel Buell and Lisa Kern Griffin's work on \"consciousness of wrongdoing\" as one possible approach to consider. Beyond tax scholars and practitioners, this Article may resonate with those interested in criminal law generally and white collar crime in particular, as well as those interested in issues ofprofessional responsibility.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114800346","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
English Abstract: We document the existence of a Crime Kuznets Curve in US states since the 1970s. As in come level shave risen, crime has followed an inverted U-shaped pattern, first increasing and then dropping. The Crime Kuznets Curve is not explained by income inequality. In fact, we show that during the sample period inequality has risen monotonically with income, ruling out the traditional Kuznets Curve. Our finding is robust to adding a large set of controls that are used in the literature to explain the incidence of crime, as well as to controlling for state and year fixed effects. The Curve is also revealed in nonparametric specifications. The Crime Kuznets Curve exists for property crime and for some categories of violent crime.Spanish Abstract: Demostramos la existenciade una Curva de Kuznets del Crimenenlos Estados Unidosdes de 1970. A medida que los niveles de ingreso han aumentado, el crimen ha seguido una trayectoria de U invertida, incrementandose inicialmente y despues cayendo. La Curvade Kuznets del crimen no esta explicada por la desigualdad del ingreso. De hecho, durante nuestro periodo muestral, la desigualdad ha crecido de forma monotona con el ingreso, descartando la presencia de una Curva de Kuznets tradicional. Nuestro resultado es robusto a la inclusion de un conjunto grande de controles usados frecuentemente en la literatura para explicar la incidencia del crimen, ademas de efectos fijos de estado y ano. La Curva es tambien evidente en especificaciones no parametricas. La Curva de Kuznets del Crimen existe para crimenes contra la propiedad y algunas categorias de crimen violento.
摘要:自20世纪70年代以来，我们记录了美国各州犯罪库兹涅茨曲线的存在。随着收入水平的上升，犯罪率呈倒u型，先上升后下降。收入不平等无法解释犯罪库兹涅茨曲线。事实上，我们表明，在样本期内，不平等随着收入的增加而单调上升，从而排除了传统的库兹涅茨曲线。我们的发现对于增加一大批用于解释犯罪发生率的控制因素，以及对州和年份固定效应的控制，都是强有力的。该曲线在非参数规范中也显示出来。犯罪库兹涅茨曲线存在于财产犯罪和某些类型的暴力犯罪中。[摘要]1970年，西班牙国家民主委员会(Demostramos la existenciade una Curva de Kuznets del Crimenenlos Estados unidos)。一项媒体调查显示，犯罪嫌疑人的犯罪行为已经超过了犯罪嫌疑人的犯罪行为，犯罪嫌疑人的犯罪行为已经超过了犯罪嫌疑人的犯罪行为。库兹涅茨的犯罪曲线没有明确的解释，也没有明确的设计。在这里，我们可以看到，在这里，我们可以看到，在这里，我们可以看到，在这里，我们可以看到，在这里，我们可以看到，在这里，我们可以看到，传统的库兹涅茨曲线。怡la包容de联合国留香都resultado es conjunto grande de还usados frecuentemente en la literatura对位explicar la incidencia del crimen除了德对fijos de estado y去年。曲线在没有参数的情况下是明显的。犯罪库兹涅茨曲线存在与暴力犯罪类别相反的准犯罪。
{"title":"The Crime Kuznets Curve (La curva de Kuznets del Crimen)","authors":"Paolo Buonanno, L. Fergusson, J. F. Vargas","doi":"10.2139/ssrn.2439434","DOIUrl":"https://doi.org/10.2139/ssrn.2439434","url":null,"abstract":"English Abstract: We document the existence of a Crime Kuznets Curve in US states since the 1970s. As in come level shave risen, crime has followed an inverted U-shaped pattern, first increasing and then dropping. The Crime Kuznets Curve is not explained by income inequality. In fact, we show that during the sample period inequality has risen monotonically with income, ruling out the traditional Kuznets Curve. Our finding is robust to adding a large set of controls that are used in the literature to explain the incidence of crime, as well as to controlling for state and year fixed effects. The Curve is also revealed in nonparametric specifications. The Crime Kuznets Curve exists for property crime and for some categories of violent crime.Spanish Abstract: Demostramos la existenciade una Curva de Kuznets del Crimenenlos Estados Unidosdes de 1970. A medida que los niveles de ingreso han aumentado, el crimen ha seguido una trayectoria de U invertida, incrementandose inicialmente y despues cayendo. La Curvade Kuznets del crimen no esta explicada por la desigualdad del ingreso. De hecho, durante nuestro periodo muestral, la desigualdad ha crecido de forma monotona con el ingreso, descartando la presencia de una Curva de Kuznets tradicional. Nuestro resultado es robusto a la inclusion de un conjunto grande de controles usados frecuentemente en la literatura para explicar la incidencia del crimen, ademas de efectos fijos de estado y ano. La Curva es tambien evidente en especificaciones no parametricas. La Curva de Kuznets del Crimen existe para crimenes contra la propiedad y algunas categorias de crimen violento.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127878157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The author argues that jurists should engage directly and empathetically with violent offenders. The paper focuses on two prevalent narratives about Myra Hindley in order to prove this point. The structure of the paper is as follows. Part I recounts the narratives surrounding the lead-up to the capture of the Moors Murderers and the facts of the jury trial. In Part II, the author focuses on the two narratives: the first (and most widespread) contends that Hindley is an icon of evil and that she was, by inference, rightly accorded no compassion; the second positions Hindley as a victim of an abusive upbringing and of Brady’s influence. Part III of the paper looks at the reasons for Hindley’s life-long imprisonment in the context of English and European law. The author contends that Hindley’s case reveals a feminist-infused narrative that compels an empathetic response to violent offenders who have been used as political pawns in criminal sentencing strategies.
{"title":"‘She Lives in Victim Country’: A Feminist Response to Empathy for Violent Offenders","authors":"J. Bradley","doi":"10.2139/SSRN.2381989","DOIUrl":"https://doi.org/10.2139/SSRN.2381989","url":null,"abstract":"The author argues that jurists should engage directly and empathetically with violent offenders. The paper focuses on two prevalent narratives about Myra Hindley in order to prove this point. The structure of the paper is as follows. Part I recounts the narratives surrounding the lead-up to the capture of the Moors Murderers and the facts of the jury trial. In Part II, the author focuses on the two narratives: the first (and most widespread) contends that Hindley is an icon of evil and that she was, by inference, rightly accorded no compassion; the second positions Hindley as a victim of an abusive upbringing and of Brady’s influence. Part III of the paper looks at the reasons for Hindley’s life-long imprisonment in the context of English and European law. The author contends that Hindley’s case reveals a feminist-infused narrative that compels an empathetic response to violent offenders who have been used as political pawns in criminal sentencing strategies.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130296891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For several decades now, the history of American criminal justice, and penal reform in particular, has revolved around questions of ideology. The “real” history of the birth of the prison, often told as a tale of idealism sullied by darker, unspoken intentions, remains an area of uncertainty and conflict for legal historians. This paper takes a detour around these issues in search of a different perspective by looking at the on-the-ground experience of the early days of criminal justice reform in post-Revolutionary New York. In this story, prisons were born in a mood of optimism quickly dampened by the realities of rising costs and red-inked ledgers.
{"title":"The Costs of Justice: Ideology, Efficiency, and Criminal Justice Reform","authors":"Joshua Stein","doi":"10.2139/SSRN.2651182","DOIUrl":"https://doi.org/10.2139/SSRN.2651182","url":null,"abstract":"For several decades now, the history of American criminal justice, and penal reform in particular, has revolved around questions of ideology. The “real” history of the birth of the prison, often told as a tale of idealism sullied by darker, unspoken intentions, remains an area of uncertainty and conflict for legal historians. This paper takes a detour around these issues in search of a different perspective by looking at the on-the-ground experience of the early days of criminal justice reform in post-Revolutionary New York. In this story, prisons were born in a mood of optimism quickly dampened by the realities of rising costs and red-inked ledgers.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"271 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122946735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In theory and in discourse, Canadian criminal law insists on the importance of free will, choice, and difference in order to hold someone criminally responsible and to legitimize punishment. Yet legal doctrine is constructed and applied in a very technical and descriptive manner that usually casts aside practical considerations, proceeds on utilitarian grounds, and simplifies what it means to be free, rational, and different. Recent proposals to strengthen or to eliminate the retributive model (e.g., to include in the analysis considerations such as socio-economic disparities and power differential or to definitely shift the discourse toward utilitarian considerations) still rely on assumptions about agency, liberty, and equality that are grounded in contested sociological evidence. As a result, their capacity to promote concrete reform is limited.In this paper, the author draws from the works of Bourdieu and other praxis theorists and argues that their research could shed new light on our understanding of choice and difference—two essential components in the assessment of responsibility. The author concludes by showing what criminal law theory could look like, especially in the case of poor offenders, if reformers were to consider such sociological evidence.
{"title":"Rethinking Criminal Responsibility for Poor Offenders: Choice, Monstrosity, and the Logic of Practice","authors":"Marie-Ève Sylvestre","doi":"10.7202/1000785AR","DOIUrl":"https://doi.org/10.7202/1000785AR","url":null,"abstract":"In theory and in discourse, Canadian criminal law insists on the importance of free will, choice, and difference in order to hold someone criminally responsible and to legitimize punishment. Yet legal doctrine is constructed and applied in a very technical and descriptive manner that usually casts aside practical considerations, proceeds on utilitarian grounds, and simplifies what it means to be free, rational, and different. Recent proposals to strengthen or to eliminate the retributive model (e.g., to include in the analysis considerations such as socio-economic disparities and power differential or to definitely shift the discourse toward utilitarian considerations) still rely on assumptions about agency, liberty, and equality that are grounded in contested sociological evidence. As a result, their capacity to promote concrete reform is limited.In this paper, the author draws from the works of Bourdieu and other praxis theorists and argues that their research could shed new light on our understanding of choice and difference—two essential components in the assessment of responsibility. The author concludes by showing what criminal law theory could look like, especially in the case of poor offenders, if reformers were to consider such sociological evidence.","PeriodicalId":223837,"journal":{"name":"LSN: Criminal Law (Public Law - Crime) (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133242842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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