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
{"title":"The Scope and Limits of the Criminal Regulation of Sexuality","authors":"michal buchhandler-raphael","doi":"10.1080/0731129X.2021.1943843","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1943843","url":null,"abstract":"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","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":"40 1","pages":"164 - 178"},"PeriodicalIF":0.0,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1943843","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43151330","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 : 2021-01-02DOI: 10.1080/0731129x.2021.1900648
Jonathan M. Jacobs
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Pub Date : 2021-01-02DOI: 10.1080/0731129X.2021.1893930
L. Hunt
Why does institutional police brutality continue so brazenly? Criminologists and other social scientists typically theorize about the causes of such violence, but less attention is given to normative questions regarding the demands of justice. Some philosophers have taken a teleological approach, arguing that social institutions such as the police exist to realize collective ends and goods based upon the idea of collective moral responsibility. Others have approached normative questions in policing from a more explicit social-contract perspective, suggesting that legitimacy is derived by adhering to (limited) authority. This article examines methodologies within political philosophy for analyzing police injustice. The methodological inquiry leads to an account of how justice constrains the police through both special (or positional) moral requirements that officers assume voluntarily, as well as general moral requirements in virtue of a polity’s commitment to moral, political and legal values beyond law enforcement and crime reduction. The upshot is a conception of a police role that is constrained by justice from multiple foundational stances.
{"title":"Policing, Brutality, and the Demands of Justice","authors":"L. Hunt","doi":"10.1080/0731129X.2021.1893930","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1893930","url":null,"abstract":"Why does institutional police brutality continue so brazenly? Criminologists and other social scientists typically theorize about the causes of such violence, but less attention is given to normative questions regarding the demands of justice. Some philosophers have taken a teleological approach, arguing that social institutions such as the police exist to realize collective ends and goods based upon the idea of collective moral responsibility. Others have approached normative questions in policing from a more explicit social-contract perspective, suggesting that legitimacy is derived by adhering to (limited) authority. This article examines methodologies within political philosophy for analyzing police injustice. The methodological inquiry leads to an account of how justice constrains the police through both special (or positional) moral requirements that officers assume voluntarily, as well as general moral requirements in virtue of a polity’s commitment to moral, political and legal values beyond law enforcement and crime reduction. The upshot is a conception of a police role that is constrained by justice from multiple foundational stances.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":"40 1","pages":"40 - 55"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1893930","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48780498","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 : 2021-01-02DOI: 10.1080/0731129X.2021.1893932
Richard Warner, R. Sloan
AI-driven decisions can draw data from virtually any area of your life to make a decision about virtually any other area of your life. That creates fairness issues. Effective regulation to ensure fairness requires that AI systems be transparent. That is, regulators must have sufficient access to the factors that explain and justify the decisions. One approach to transparency is to require that systems be explainable, as that concept is understood in computer science. A system is explainable if one can provide a human-understandable explanation of why it makes any particular prediction. Explainability should not be equated with transparency. To address transparency and characterize its relation to explainability, we define transparency for a regulatory purpose. A system is transparent for a regulatory purpose (r-transparent) when and only when regulators have an explanation, adequate for that purpose, of why it yields the predictions it does. Explainability remains relevant to transparency but turns out to be neither necessary nor sufficient for it. The concepts of explainability and r-transparency combine to yield four possibilities: explainable and either r-transparent or not; and not explainable and either not r-transparent or r-transparent. Combining r-transparency with ideas from the Harvard computer scientist Cynthia Dwork, we propose four requirements on AI systems.
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Pub Date : 2021-01-02DOI: 10.1080/0731129X.2021.1903709
Hin-Yan Liu
My aim in this article is to set out some counter-intuitive claims about the challenges posed by artificial intelligence (AI) applications to the protection and enjoyment of human rights and to be your guide through my unorthodox ideas. While there are familiar human rights issues raised by AI and its applications, these are perhaps the easiest of the challenges because they are already recognized by the human rights regime as problems. Instead, the more pernicious challenges are those that have yet to be identified or articulated, because they arise from new affordances rather than directly through AI modeled as a technology. I suggest that we need to actively explore the potential problem space on this basis. I suggest that we need to adopt models and metaphors that systematically exclude the possibility of applying the human rights regime to AI applications. This orientation will present us with the difficult, intractable problems that most urgently require responses. There are convincing ways of understanding AI that lock out the very possibility for human rights responses and this should be grounds for serious concern. I suggest that responses need to exploit both sets of insights I present in this paper: first that proactive and systematic searches of the potential problem space need to be continuously conducted to find the problems that require responses; and second that the monopoly that the human rights regime holds with regards to addressing harm and suffering needs to be broken so that we can deploy a greater range of barriers against failures to recognize and remedy AI-induced wrongs.
{"title":"AI Challenges and the Inadequacy of Human Rights Protections","authors":"Hin-Yan Liu","doi":"10.1080/0731129X.2021.1903709","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1903709","url":null,"abstract":"My aim in this article is to set out some counter-intuitive claims about the challenges posed by artificial intelligence (AI) applications to the protection and enjoyment of human rights and to be your guide through my unorthodox ideas. While there are familiar human rights issues raised by AI and its applications, these are perhaps the easiest of the challenges because they are already recognized by the human rights regime as problems. Instead, the more pernicious challenges are those that have yet to be identified or articulated, because they arise from new affordances rather than directly through AI modeled as a technology. I suggest that we need to actively explore the potential problem space on this basis. I suggest that we need to adopt models and metaphors that systematically exclude the possibility of applying the human rights regime to AI applications. This orientation will present us with the difficult, intractable problems that most urgently require responses. There are convincing ways of understanding AI that lock out the very possibility for human rights responses and this should be grounds for serious concern. I suggest that responses need to exploit both sets of insights I present in this paper: first that proactive and systematic searches of the potential problem space need to be continuously conducted to find the problems that require responses; and second that the monopoly that the human rights regime holds with regards to addressing harm and suffering needs to be broken so that we can deploy a greater range of barriers against failures to recognize and remedy AI-induced wrongs.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":"40 1","pages":"2 - 22"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1903709","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48456425","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 : 2021-01-02DOI: 10.1080/0731129X.2021.1900649
J. Ryberg
A traditional assumption in retributivist thinking is the view that an offender's desert is determined exclusively on the basis of the gravity of the crime committed. However, this assumption has recently been challenged. Netanel Dagan and Julian Roberts have advocated a dynamic theory of desert, or what they refer to as “the dynamic censure model.” According to this model, certain post-sentencing reactions in the offender should be taken into account in the determination of the offender's desert and the severity of appropriate punishment. The purpose of this article is to assess this dynamic concept of desert. I argue that despite the fact that the model offers a new and interesting approach to desert and sentencing, it also faces a range of theoretical challenges that are not easily answered.
{"title":"Retributivism and the Dynamic Desert Model: Three Challenges to Dagan and Roberts","authors":"J. Ryberg","doi":"10.1080/0731129X.2021.1900649","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1900649","url":null,"abstract":"A traditional assumption in retributivist thinking is the view that an offender's desert is determined exclusively on the basis of the gravity of the crime committed. However, this assumption has recently been challenged. Netanel Dagan and Julian Roberts have advocated a dynamic theory of desert, or what they refer to as “the dynamic censure model.” According to this model, certain post-sentencing reactions in the offender should be taken into account in the determination of the offender's desert and the severity of appropriate punishment. The purpose of this article is to assess this dynamic concept of desert. I argue that despite the fact that the model offers a new and interesting approach to desert and sentencing, it also faces a range of theoretical challenges that are not easily answered.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":"40 1","pages":"56 - 67"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1900649","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42551030","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 : 2021-01-02DOI: 10.1080/0731129X.2021.1893931
M. Osler
Bernadette Meyler. Theaters of Pardoning. Ithaca: Cornell University Press, 2019, 308 pp., $29.95 (paperback). ISBN: 9781501739347.I often give lectures about clemency and its history at law school...
{"title":"Theaters of Pardoning","authors":"M. Osler","doi":"10.1080/0731129X.2021.1893931","DOIUrl":"https://doi.org/10.1080/0731129X.2021.1893931","url":null,"abstract":"Bernadette Meyler. Theaters of Pardoning. Ithaca: Cornell University Press, 2019, 308 pp., $29.95 (paperback). ISBN: 9781501739347.I often give lectures about clemency and its history at law school...","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":"40 1","pages":"68 - 74"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2021.1893931","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46964963","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}
Throughout the Fourth Amendment’s history, major doctrinal shifts have been driven by technological change.1 Sometimes the result has been more Fourth Amendment protection,2 sometimes less.3 And in...
{"title":"Cost-Benefit Analysis and the Digital Fourth Amendment","authors":"A. Rozenshtein","doi":"10.2139/ssrn.3802008","DOIUrl":"https://doi.org/10.2139/ssrn.3802008","url":null,"abstract":"Throughout the Fourth Amendment’s history, major doctrinal shifts have been driven by technological change.1 Sometimes the result has been more Fourth Amendment protection,2 sometimes less.3 And in...","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":"40 1","pages":"75 - 83"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48183294","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 : 2020-09-01DOI: 10.1080/0731129x.2020.1851447
David Sussman
In The Limits of Blame, Erin Kelly argues that we should purge our thinking about criminal justice of notions of moral desert and blameworthiness. Her targets are retributivist theories of punishme...
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