Pub Date : 2021-09-02DOI: 10.1080/0731129X.2021.1993673
Cécile Fabre
Suppose that state A wages war against state D. We want to know at least three things. First, does state A have a moral and legal justification for going to war? Second, what may and must those states’ armed forces do, morally and legally, in the course of fighting their war? Third, if those states’ leaders and ordinary soldiers act wrongly and/or illegally, ought they be punished and if so, by whom? In the parlance of just war theory, we want to know what moral and legal norms regulate the resort to war ( jus ad bellum), belligerents’and soldiers’ conduct in war ( jus in bello), and their conduct after war ( jus post bellum). Arthur Ripstein’s Rules for Wrongdoers, which is the published text of his Berkeley Tanner Lectures on Human Values, offers novel and interesting responses to those questions. It includes comments by Oona Hathaway, Christopher Kutz and Jeff McMahan, and Ripstein’s response to those comments. The book’s chief aim is to provide a solution to a deep and important puzzle about the morality and the law of war. The puzzle is this: According to the law of war and the moral norms which underpin it, states may not (morally and legally) initiate war against other states. They may resort to war only (a) to defend their territorial integrity and political independence against a military aggression, (b) to come to one another’s assistance in the face of aggression, or (c) to prevent the commission of atrocities in other states. Failing that, they and their leadership commit the moral wrong and the legal crime of aggression. Once the war has started, soldiers from both sides are prohibited from employing a range of tactics. In particular, they are legally and morally prohibited from deliberately killing anyone who is not or is no longer participating in the war, such as soldiers who have surrendered and, crucially, innocent civilians. They are also ∗Cécile Fabre. Email: cecile.fabre@all-souls. ox.ac.uk Criminal Justice Ethics, 2021 Vol. 40, No. 3, 256–268, https://doi.org/10.1080/0731129X.2021.1993673
{"title":"The Law vs. the Sword: Arthur Ripstein’s Account of the Morality and Law of War","authors":"Cécile Fabre","doi":"10.1080/0731129X.2021.1993673","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1993673","url":null,"abstract":"Suppose that state A wages war against state D. We want to know at least three things. First, does state A have a moral and legal justification for going to war? Second, what may and must those states’ armed forces do, morally and legally, in the course of fighting their war? Third, if those states’ leaders and ordinary soldiers act wrongly and/or illegally, ought they be punished and if so, by whom? In the parlance of just war theory, we want to know what moral and legal norms regulate the resort to war ( jus ad bellum), belligerents’and soldiers’ conduct in war ( jus in bello), and their conduct after war ( jus post bellum). Arthur Ripstein’s Rules for Wrongdoers, which is the published text of his Berkeley Tanner Lectures on Human Values, offers novel and interesting responses to those questions. It includes comments by Oona Hathaway, Christopher Kutz and Jeff McMahan, and Ripstein’s response to those comments. The book’s chief aim is to provide a solution to a deep and important puzzle about the morality and the law of war. The puzzle is this: According to the law of war and the moral norms which underpin it, states may not (morally and legally) initiate war against other states. They may resort to war only (a) to defend their territorial integrity and political independence against a military aggression, (b) to come to one another’s assistance in the face of aggression, or (c) to prevent the commission of atrocities in other states. Failing that, they and their leadership commit the moral wrong and the legal crime of aggression. Once the war has started, soldiers from both sides are prohibited from employing a range of tactics. In particular, they are legally and morally prohibited from deliberately killing anyone who is not or is no longer participating in the war, such as soldiers who have surrendered and, crucially, innocent civilians. They are also ∗Cécile Fabre. Email: cecile.fabre@all-souls. ox.ac.uk Criminal Justice Ethics, 2021 Vol. 40, No. 3, 256–268, https://doi.org/10.1080/0731129X.2021.1993673","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48632796","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}
Pub Date : 2021-09-02DOI: 10.1080/0731129X.2021.2010360
Guy Ben-David
Witness preparation before trial constitutes one of the lawyers’ most important and fundamental tools in the practice of criminal law. It fulfills the lawyer's professional duties both towards their client and towards the court, and it also contributes to the effectiveness of the judicial process. Despite the centrality and importance of this practice, it creates ethical and evidentiary difficulties. Conducting such an interview is often accompanied by the fear that the interview will be abused and might serve as an improper means to guide and coach the witness out of court. The fears and dangers embodied in witness interviews highlight the need for an arrangement for both the ethical and evidentiary aspects involved. In this article, I discuss the purposes of witness preparation, the risks and difficulties that it entails, the regulation of this practice in Anglo-American law (the US, England, Israel, Canada, Australia and New Zealand), and I suggest a possible model arrangement that would, in my opinion, provide a comprehensive response to the concerns and difficulties this practice engenders and which can contribute to lawyers’ professionalism and promote the purposes of criminal procedure.
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Pub Date : 2021-09-02DOI: 10.1080/0731129X.2021.2013684
Garret Merriam
As long as we have a death penalty we will inevitably execute innocent people. It has been argued by many scholars, such as Michael Radelet, Hugo Bedau and Constance Putnam, that such miscarriages of justice mean we should abolish the death penalty. I argue that, paradoxically, if we do abolish the death penalty more innocent people may be punished for crimes they did not commit. Miscarriages of justice may increase because the “surplus oversight” (extra appeals, more lawyer hours, etc.) that attend capital cases may disappear. I collected and analyzed available data on surplus oversight, which strongly suggests that this is the case. To further test my hypothesis, I constructed and implemented an experiment: would subjects donate as much to an innocence project if the innocent person were serving life in prison as they would if the innocent person were sentenced to die? The results of the experiment suggest that they would not; donations to exonerate innocent people serving life were about 20% lower than those to exonerate innocent people on death row. These findings support my conclusion: if we abolish the death penalty people may pay less attention and allocate fewer resources to wrongful convictions so that inadvertently more people may spend the rest of their lives in prison for crimes they did not commit. Ironically, if we want to avoid miscarriages of justice, we have a reason to keep the death penalty.
{"title":"The Paradox of Innocence: Why Abolishing the Death Penalty May Increase Miscarriages of Justice","authors":"Garret Merriam","doi":"10.1080/0731129X.2021.2013684","DOIUrl":"https://doi.org/10.1080/0731129X.2021.2013684","url":null,"abstract":"As long as we have a death penalty we will inevitably execute innocent people. It has been argued by many scholars, such as Michael Radelet, Hugo Bedau and Constance Putnam, that such miscarriages of justice mean we should abolish the death penalty. I argue that, paradoxically, if we do abolish the death penalty more innocent people may be punished for crimes they did not commit. Miscarriages of justice may increase because the “surplus oversight” (extra appeals, more lawyer hours, etc.) that attend capital cases may disappear. I collected and analyzed available data on surplus oversight, which strongly suggests that this is the case. To further test my hypothesis, I constructed and implemented an experiment: would subjects donate as much to an innocence project if the innocent person were serving life in prison as they would if the innocent person were sentenced to die? The results of the experiment suggest that they would not; donations to exonerate innocent people serving life were about 20% lower than those to exonerate innocent people on death row. These findings support my conclusion: if we abolish the death penalty people may pay less attention and allocate fewer resources to wrongful convictions so that inadvertently more people may spend the rest of their lives in prison for crimes they did not commit. Ironically, if we want to avoid miscarriages of justice, we have a reason to keep the death penalty.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48881813","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}
Pub Date : 2021-09-02DOI: 10.1080/0731129X.2021.2013414
J. Ryberg
Why is the ethics of punishment an important academic field? The standard answer given by philosophers, legal scholars, and other theorists is that academic engagement in the ethics of punishment is justified by the importance of informing and guiding penal practice. In this article, this view is referred to as the Impact Assumption. The purpose of the article is to consider what this assumption implies for the way research within this field should be conducted. First, I argue that the way research is currently being disseminated, the nature of the research itself, and the lack of interest among legislators and other decision-makers, constitute serious challenges to the satisfaction of the Impact Assumption. Second, I suggest that these challenges can be overcome, but that this will require a significant expansion and reorientation of the entire field.
{"title":"The Ethics of Punishment and the Impact Assumption. — Reconsidering the Role of Penal Ethicists","authors":"J. Ryberg","doi":"10.1080/0731129X.2021.2013414","DOIUrl":"https://doi.org/10.1080/0731129X.2021.2013414","url":null,"abstract":"Why is the ethics of punishment an important academic field? The standard answer given by philosophers, legal scholars, and other theorists is that academic engagement in the ethics of punishment is justified by the importance of informing and guiding penal practice. In this article, this view is referred to as the Impact Assumption. The purpose of the article is to consider what this assumption implies for the way research within this field should be conducted. First, I argue that the way research is currently being disseminated, the nature of the research itself, and the lack of interest among legislators and other decision-makers, constitute serious challenges to the satisfaction of the Impact Assumption. Second, I suggest that these challenges can be overcome, but that this will require a significant expansion and reorientation of the entire field.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42888897","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}
Pub Date : 2021-06-19eCollection Date: 2021-01-01DOI: 10.1080/0731129X.2021.1943844
Christian Enemark
Ethical analysis of armed drones has to date focused heavily on their use in foreign wars or counterterrorism operations, but it is important also to consider the potential use of armed drones in domestic law enforcement. Governments around the world are already making drones available to police for purposes including border control, criminal investigation, rescue missions, traffic management, and the monitoring of public assemblies. Unarmed and controlled remotely, these camera-equipped aircraft provide a powerful and mobile surveillance capacity that can be highly effective in detecting suspicious activity and guiding police operations. In addition, for situations where criminal violence presents a danger to public safety, some governments appear to be readying their police to neutralize threats using drones that are also equipped with weapons. In anticipation of that potential development, this article discusses whether or how police should use armed drones. It applies some of the established ethical principles on police use of force (necessity, proportionality, and precaution), and it explores some of the challenges a drone-using, "tele-present" police officer is likely to face in seeking to adhere to those principles.
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Pub Date : 2021-05-04DOI: 10.1080/0731129X.2021.1948763
S. Russell
Beyond Punishment provides a thought-provoking analysis of the negative legal consequences of criminal convictions that fall outside formal sentences imposed on individuals for their offenses. In many instances, these collateral legal consequences (“CLCs,” as Hoskins calls them for short) may have a longer and more damaging impact on a person than the sentence imposed in court. Yet questions regarding the moral justifiability of such provisions have received little attention from scholars. Hoskins’ book tackles this important topic—exploring the circumstances under which CLCs can be justified, as well as some of the practical implications that stem from the proliferation of CLCs in our society. Hoskins’ insights will be engaging to philosophers and legal scholars, and he offers critical guidance to policy makers and reform advocates. CLCs are restrictions or exclusions that federal, state, or local governments impose on individuals based on their criminal convictions. Examples include restrictions on voting, occupational licenses, public housing, and public assistance. CLCs are distinct from the many informal ways in which criminal convictions impede advancement in society—for example, discrimination by private employers, landlords, or educational institutions based on an applicant’s criminal record. Hoskins begins by considering whether CLCs should be treated as civil measures (as is the traditional approach) or as forms of punishment for the offense of conviction. The punishment/civil distinction matters to Hoskins, as his test for whether the measure is justified depends on its proper classification. Hoskins rejects an all-or-nothing view. Instead, he asserts that CLCs should be viewed as part of punishment in those instances when “they are intended to be burdensome and to communicate condemnation of the offender’s wrongdoing” (51). To be Sarah French Russell is Professor of Law, School of Law, Quinnipiac University School of Law, North Haven, USA. Email: sarah.russell@quinnipiac.edu Criminal Justice Ethics, 2021 Vol. 40, No. 2, 145–151, https://doi.org/10.1080/0731129X.2021.1948763
《超越惩罚》对刑事定罪的负面法律后果进行了发人深省的分析，这些刑事定罪超出了对个人犯罪的正式判决。在许多情况下，这些附带的法律后果(霍斯金斯简称为“CLCs”)对一个人的影响可能比法庭上的判决更长、更具破坏性。然而，有关这些规定的道德正当性的问题却很少受到学者们的关注。霍斯金斯的书探讨了这个重要的话题，探讨了在何种情况下，社区服务是合理的，以及社区服务在我们社会中的扩散所产生的一些实际影响。霍斯金斯的见解将吸引哲学家和法律学者，他为政策制定者和改革倡导者提供了重要的指导。CLCs是联邦、州或地方政府根据个人的刑事定罪对其施加的限制或排除。例子包括对投票、职业执照、公共住房和公共援助的限制。刑事诉讼不同于许多刑事定罪阻碍社会进步的非正式方式——例如，私人雇主、房东或教育机构基于申请人犯罪记录的歧视。霍斯金斯首先考虑的是，刑事诉讼是否应被视为民事措施(就像传统的做法一样)，还是作为对定罪罪的惩罚形式。惩罚/民事区分对霍斯金斯很重要，因为他对措施是否合理的检验取决于其适当的分类。霍斯金斯反对孤注一掷的观点。相反，他断言，在“其目的是加重负担并表达对犯罪者不法行为的谴责”的情况下，刑事诉讼应被视为惩罚的一部分(51)。Sarah French Russell是美国昆尼皮亚克大学法学院的法学教授。电子邮件:sarah.russell@quinnipiac.edu刑事司法伦理，2021年第40卷第2期，145-151,https://doi.org/10.1080/0731129X.2021.1948763
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Pub Date : 2021-05-04DOI: 10.1080/0731129X.2021.1943845
Steven Tudor
Malcolm Bull. On Mercy. Princeton: Princeton University Press, 2019, 191 pp., $24.95 (hardback), ISBN 9780691165332 Martha Minow. When Should Law Forgive? New York: Norton, 2019, 252 pp., $27.95 (hardback), ISBN 9780393081763 Most political theorists would agree that the abuse of power is a bad thing, and that a political system should try to prevent it from occurring or, when it can’t, at least limit it and then somehow remedy or ameliorate it. Whether the power is legislative, judicial, or executive— or, indeed, of other kinds beyond that familiar trinity—it is important that the system that generates (and possibly legitimates) that power has ways of constraining or directing it, so that its wielders don’t use it to oppress those who are subject to it, or to inflict cruelties or humiliations upon them, or to enrich themselves at the expense of the powerless. In that task of thwarting the abuse of power, some conception of justice has usually had some central role to play. Justice might help to define— and thereby limit—the power itself (e.g. judicial power might be defined in terms of the power to do justice according to law, in particular cases brought to the court by a plaintiff or prosecutor), and it might help to constrain its application (e.g. through rules of procedural fairness). At the core of most conceptions of justice are ideas of equality, consistency, impartiality, desert, and rights, among others. These in turn often get cashed out practically in terms of rules (legal or extra-legal) that, among other things, set standards for the wielders of power so that an abuse of power is understood as a breach of those standards and can thus be more readily identified and its correction or amelioration more readily conceived. (Whether there is practical capacity and the will to put such correction or amelioration into effect is another matter). There is little doubt that, in modern Western polities at least, justice must play some sort of central role here, but the two books under discussion here, Malcolm Bull’s On Mercy and Martha Minow’s When Should Law Forgive? S.tudor@latrobe.edu.au Criminal Justice Ethics, 2021 Vol. 40, No. 2, 152–163, https://doi.org/10.1080/0731129X.2021.1943845
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Pub Date : 2021-05-04DOI: 10.1080/0731129X.2021.1949922
Hadassa Noorda
Theorists of criminal law widely agree that state punishment involves harsh treatment and stigma and that states must therefore provide protections for targeted individuals. But certain regulatory measures can also be used to impose harsh treatment and stigma. This paper addresses the stigmatic impact of harsh regulatory measures. It argues that harsh regulatory measures that label targeted individuals as risky impose a stigma that has the potential to significantly affect these individual’s personal and professional relationships. Such measures include area restrictions applied to alleged terrorists and registration requirements for convicted sex offenders. I recommend ways of implementing legal safeguards for targeted individuals against the stigma involved in the employment of such measures.
{"title":"Regulation as Punishment","authors":"Hadassa Noorda","doi":"10.1080/0731129X.2021.1949922","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1949922","url":null,"abstract":"Theorists of criminal law widely agree that state punishment involves harsh treatment and stigma and that states must therefore provide protections for targeted individuals. But certain regulatory measures can also be used to impose harsh treatment and stigma. This paper addresses the stigmatic impact of harsh regulatory measures. It argues that harsh regulatory measures that label targeted individuals as risky impose a stigma that has the potential to significantly affect these individual’s personal and professional relationships. Such measures include area restrictions applied to alleged terrorists and registration requirements for convicted sex offenders. I recommend ways of implementing legal safeguards for targeted individuals against the stigma involved in the employment of such measures.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1949922","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47907587","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}
Pub Date : 2021-05-04DOI: 10.1080/0731129X.2021.1951459
Ross W. Bellaby
The ability of machines to make truly independent and autonomous decisions is a goal of many, not least of military leaders who wish to take the human out of the loop as much as possible, claiming that autonomous military weaponry—most notably drones—can make decisions more quickly and with greater accuracy. However, there is no clear understanding of how autonomous weapons should be conceptualized and of the implications that their “autonomous” nature has on them as ethical agents. It will be argued that autonomous weapons are not full ethical agents due to the restrictions of their coding. However, the highly complex machine-learning nature gives the impression that they are making their own decisions and creates the illusion that their human operators are protected from the responsibility of the harm they cause. Therefore, it is important to distinguish between autonomous AI weapons and an AI with autonomy, a distinction that creates two different ethical problems for their use. For autonomous weapons, their limited agency combined with machine-learning means their human counterparts are still responsible for their actions while having no ability to control or intercede in the actual decisions made. If, on the other hand, an AI could reach the point of autonomy, the level of critical reflection would make its decisions unpredictable and dangerous in a weapon.
{"title":"Can AI Weapons Make Ethical Decisions?","authors":"Ross W. Bellaby","doi":"10.1080/0731129X.2021.1951459","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1951459","url":null,"abstract":"The ability of machines to make truly independent and autonomous decisions is a goal of many, not least of military leaders who wish to take the human out of the loop as much as possible, claiming that autonomous military weaponry—most notably drones—can make decisions more quickly and with greater accuracy. However, there is no clear understanding of how autonomous weapons should be conceptualized and of the implications that their “autonomous” nature has on them as ethical agents. It will be argued that autonomous weapons are not full ethical agents due to the restrictions of their coding. However, the highly complex machine-learning nature gives the impression that they are making their own decisions and creates the illusion that their human operators are protected from the responsibility of the harm they cause. Therefore, it is important to distinguish between autonomous AI weapons and an AI with autonomy, a distinction that creates two different ethical problems for their use. For autonomous weapons, their limited agency combined with machine-learning means their human counterparts are still responsible for their actions while having no ability to control or intercede in the actual decisions made. If, on the other hand, an AI could reach the point of autonomy, the level of critical reflection would make its decisions unpredictable and dangerous in a weapon.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1951459","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43400274","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}
Pub Date : 2021-05-04DOI: 10.1080/0731129X.2021.1943843
michal buchhandler-raphael
In recent decades, societal perceptions about sexuality have undergone immense changes, which in turn led to substantial reform of states’ criminal regulation of sexual misconduct. Traditional Anglo-American law broadly criminalized all forms of sexual acts that occurred outside the institution of marriage. But changing sexual mores and the sexual practices individuals choose to engage in have resulted in states’ decriminalizing many consensual sexual behaviors that do not cause harm to third parties, where the initial justification for their criminalization rested solely on moral grounds. Yet, at the same time, legal scholars and feminist reformers, particularly in the aftermath of the #MeToo social movement, call on legislatures and policy makers to reform existing sexual assault laws in a way that would increase prosecutions for these crimes and provide justice to victims. This type of advocacy urges legislatures and policy makers to expand the scope of criminal provisions on sexual misconduct by adopting “gap fillers” to cover types of misconduct that existing legislative frameworks fail to encompass. Still other reformers, adhering to the goals of the social movement Black Lives Matter (BLM), highlight concerns about over-criminalization, over-enforcement, and mass incarceration that have disproportionately affected minority communities, especially black men, including among others in the area of sexual offenses. In the wake of #MeToo, and given this multifaceted political and social environment, questions surrounding states’ criminal regulation of sexuality currently stand at a pivotal moment. These times force legislatures and policy makers to reconcile the purported tension between the need to protect victims of sexual misconduct from violation of their sexual autonomy on the one hand, while also contracting states’ power to ∗Michal Buchhandler-Raphael. Email: mbuchhandler-raphael@widener.edu Criminal Justice Ethics, 2021 Vol. 40, No. 2, 164–178, https://doi.org/10.1080/0731129X.2021.1943843
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