Pub Date : 2020-01-02DOI: 10.1080/0731129X.2020.1746106
C. T. Wathne
This article explores the ways in which competing institutional logics influence the knowledge base of the police, ideas about good police practice and organizational identities. A tension between the humanistic professional police logic and the instrumental New Public Management (NPM) logic is discussed in the context of policing. While the humanistic professional police logic gradually emerged in the 1960s and 70s, over the past twenty years the police force has been reformed in line with the NPM logic. Through qualitative interviews and a quantitative study of the police force, the article investigates the ways in which the ideas of what constitutes a normative good practice are shaped in relation to these two, opposing, logics. A central finding is that despite many years of NPM as the dominant steering logic, a humanistic professional logic persists. However, the shift towards the NPM logic transforms the knowledge base in a more evidence-oriented direction and affects the ideas of normative good practice, especially among police management.
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Pub Date : 2020-01-02DOI: 10.1080/0731129X.2020.1747175
Lawrence J. Fox, Darcy Covert, Megan Mumford
The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But even after the representation has ended, trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government is positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record—ideally at a deposition, but alternatively through affidavits.
{"title":"Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims","authors":"Lawrence J. Fox, Darcy Covert, Megan Mumford","doi":"10.1080/0731129X.2020.1747175","DOIUrl":"https://doi.org/10.1080/0731129X.2020.1747175","url":null,"abstract":"The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But even after the representation has ended, trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government is positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record—ideally at a deposition, but alternatively through affidavits.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2020.1747175","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42141577","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 : 2019-09-02DOI: 10.1080/0731129X.2019.1681132
T. Sorell
Digilantism is punishment through online exposure of supposed wrongdoing. Paedophile hunting is one example, and the practice is open to many of the classical objections to vigilantism. But it lies on a spectrum that contains many other kinds of digilantism. Scambaiting is among the other kinds. It consists of attracting online approaches from perpetrators of different kinds of online advance-fee fraud. Characteristically, it takes the form of protracted email exchanges between scammers and scambaiters. These exchanges are mainly down-to-earth and occasionally testy conversations about the details of fictitious money transfers or involved explanations of delays in payment. They succeed in their purpose if they waste a lot of their targets’ time, but they can also be pursued as a sort of comic art form. Scambaiting exchanges seem often, but not always, to be relatively harmless. They therefore help to make intelligible a region of morally permissible digilantism on the spectrum of digilantism. Not that scambaiters never go too far, but their typical weapons inflict and risk inflicting far less harm than those of other digilantes, and there are actual scambaiting norms that have been chosen because of their relative harmlessness.
{"title":"Scambaiting on the Spectrum of Digilantism","authors":"T. Sorell","doi":"10.1080/0731129X.2019.1681132","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1681132","url":null,"abstract":"Digilantism is punishment through online exposure of supposed wrongdoing. Paedophile hunting is one example, and the practice is open to many of the classical objections to vigilantism. But it lies on a spectrum that contains many other kinds of digilantism. Scambaiting is among the other kinds. It consists of attracting online approaches from perpetrators of different kinds of online advance-fee fraud. Characteristically, it takes the form of protracted email exchanges between scammers and scambaiters. These exchanges are mainly down-to-earth and occasionally testy conversations about the details of fictitious money transfers or involved explanations of delays in payment. They succeed in their purpose if they waste a lot of their targets’ time, but they can also be pursued as a sort of comic art form. Scambaiting exchanges seem often, but not always, to be relatively harmless. They therefore help to make intelligible a region of morally permissible digilantism on the spectrum of digilantism. Not that scambaiters never go too far, but their typical weapons inflict and risk inflicting far less harm than those of other digilantes, and there are actual scambaiting norms that have been chosen because of their relative harmlessness.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1681132","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43086723","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 : 2019-09-02DOI: 10.1080/0731129X.2019.1681667
E. Moser
The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal law, and a theoretical framework for an idea of punishment as restitution.
{"title":"Rights in Criminal Law in the Light of a Will Theory","authors":"E. Moser","doi":"10.1080/0731129X.2019.1681667","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1681667","url":null,"abstract":"The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal law, and a theoretical framework for an idea of punishment as restitution.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1681667","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48671070","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 : 2019-09-02DOI: 10.1080/0731129X.2019.1682263
K. Beckett
Misdemeanorland provides a comprehensive and insightful analysis of the lower courts’ response to the implementation of Broken Windows Policing in New York City and the flood of arrests this generated in the 1990s and 2000s. Drawing on administrative police and court data, as well as extensive ethnographic observations and interviews with court actors and defendants, Kohler-Hausmann argues that the work of the lower courts, at least in New York City, is best understood as a form of “managerial justice” in which court actors seek to manage people whose governability has been called into question by their arrest. This mode of justice involves requiring and evaluating their interaction with the courts over time – often long periods of time. In developing this conceptual model, and by drawing on rich empirical data to bring its existence and effects to life, Misdemeanorland makes an invaluable contribution to the burgeoning literature on courts and social control more generally. Kohler-Hausmann begins by noting that many more people are arrested for misdemeanor offenses than for felonies, and that many of those entangled in the world of the lower courts are, in the end, neither convicted nor jailed. Still, she emphasises, this entanglement often has a range of destabilising effects and, in the aggregate, reinforce race and class inequality. Insofar as the relevant literature tends to focus on the felony side of the system, it fails to capture the reach of the criminal justice system and misrepresents the typical criminal justice encounter. Understanding how court processes and non-custodial sanctions create a diffuse and consequential mode of social control requires that we attend to the operations and effects of the lower courts. Kohler-Hausmann is particularly interested in how lower-court actors responded to the dramatic uptick in arrests that resulted from the implementation of Broken Windows Policing in New York City. Broken ∗Katherine Beckett is Professor in the Department of Sociology at University of Washington, Seattle, WA, USA. Email: kbeckett@wu.edu Criminal Justice Ethics, 2019 Vol. 38, No. 3, 221–229, https://doi.org/10.1080/0731129X.2019.1682263
{"title":"In and Beyond Misdemeanorland","authors":"K. Beckett","doi":"10.1080/0731129X.2019.1682263","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1682263","url":null,"abstract":"Misdemeanorland provides a comprehensive and insightful analysis of the lower courts’ response to the implementation of Broken Windows Policing in New York City and the flood of arrests this generated in the 1990s and 2000s. Drawing on administrative police and court data, as well as extensive ethnographic observations and interviews with court actors and defendants, Kohler-Hausmann argues that the work of the lower courts, at least in New York City, is best understood as a form of “managerial justice” in which court actors seek to manage people whose governability has been called into question by their arrest. This mode of justice involves requiring and evaluating their interaction with the courts over time – often long periods of time. In developing this conceptual model, and by drawing on rich empirical data to bring its existence and effects to life, Misdemeanorland makes an invaluable contribution to the burgeoning literature on courts and social control more generally. Kohler-Hausmann begins by noting that many more people are arrested for misdemeanor offenses than for felonies, and that many of those entangled in the world of the lower courts are, in the end, neither convicted nor jailed. Still, she emphasises, this entanglement often has a range of destabilising effects and, in the aggregate, reinforce race and class inequality. Insofar as the relevant literature tends to focus on the felony side of the system, it fails to capture the reach of the criminal justice system and misrepresents the typical criminal justice encounter. Understanding how court processes and non-custodial sanctions create a diffuse and consequential mode of social control requires that we attend to the operations and effects of the lower courts. Kohler-Hausmann is particularly interested in how lower-court actors responded to the dramatic uptick in arrests that resulted from the implementation of Broken Windows Policing in New York City. Broken ∗Katherine Beckett is Professor in the Department of Sociology at University of Washington, Seattle, WA, USA. Email: kbeckett@wu.edu Criminal Justice Ethics, 2019 Vol. 38, No. 3, 221–229, https://doi.org/10.1080/0731129X.2019.1682263","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1682263","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43462365","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 : 2019-09-02DOI: 10.1080/0731129X.2019.1686826
J. Jacobs
Recent developments in philosophy and in criminology indicate that there are significant respects in which the two disciplines can be mutually informing. Many philosophers are increasingly interested in exploring empirical aspects of philosophical claims, and criminologists are finding their way past the alleged fact/value distinction and are rediscovering the moral significance of facts, especially regarding punishment and desistance. In some recent criminological studies there are implicit links to the British moralists such as David Hume and Adam Smith, and to Aristotle as well. This paper explicates those links and some of the possibilities for philosophy and criminology to be mutually informing.
{"title":"Some Remarks on Criminology and Moral Philosophy","authors":"J. Jacobs","doi":"10.1080/0731129X.2019.1686826","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1686826","url":null,"abstract":"Recent developments in philosophy and in criminology indicate that there are significant respects in which the two disciplines can be mutually informing. Many philosophers are increasingly interested in exploring empirical aspects of philosophical claims, and criminologists are finding their way past the alleged fact/value distinction and are rediscovering the moral significance of facts, especially regarding punishment and desistance. In some recent criminological studies there are implicit links to the British moralists such as David Hume and Adam Smith, and to Aristotle as well. This paper explicates those links and some of the possibilities for philosophy and criminology to be mutually informing.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1686826","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46500851","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 : 2019-05-04DOI: 10.1080/0731129X.2019.1600288
H. Maslen, C. Paine
Non-recent child sexual abuse (CSA) and child sexual exploitation (CSE) have received recent attention. Victims often do not report their ordeal at the time the incident occurred, and it is increasingly common for agencies to refer concerns to the police years, or decades, after the event. The combination of the non-recent nature of the offence, the lack of engagement by the (potentially vulnerable) victim, and the huge resource burden of investigation make deciding whether to proceed with investigation complex and ethically challenging. Although there will always be a presumption in favor of investigation, for some cases the reasons against investigating will outweigh this presumption. We examine the considerations at stake in making a decision about whether to make contact with the victim and proceed with investigating a particular non-recent CSA case. Arguing for a “broad rights” approach, we identify considerations relating to (1) the victim, (2) criminal justice and crime prevention, (3) limited resources, and (4) legitimacy. We argue that, all other things being equal, non-recent and current investigations are equally worthy of investigation. We assess the implications of suspects being persons of public prominence. We outline a principled decision-making framework to aid investigators. The Oxford CSA Framework has the potential to reduce unnecessary demand on police resources.
{"title":"When Should the Police Investigate Cases of Non-recent Child Sexual Abuse?","authors":"H. Maslen, C. Paine","doi":"10.1080/0731129X.2019.1600288","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1600288","url":null,"abstract":"Non-recent child sexual abuse (CSA) and child sexual exploitation (CSE) have received recent attention. Victims often do not report their ordeal at the time the incident occurred, and it is increasingly common for agencies to refer concerns to the police years, or decades, after the event. The combination of the non-recent nature of the offence, the lack of engagement by the (potentially vulnerable) victim, and the huge resource burden of investigation make deciding whether to proceed with investigation complex and ethically challenging. Although there will always be a presumption in favor of investigation, for some cases the reasons against investigating will outweigh this presumption. We examine the considerations at stake in making a decision about whether to make contact with the victim and proceed with investigating a particular non-recent CSA case. Arguing for a “broad rights” approach, we identify considerations relating to (1) the victim, (2) criminal justice and crime prevention, (3) limited resources, and (4) legitimacy. We argue that, all other things being equal, non-recent and current investigations are equally worthy of investigation. We assess the implications of suspects being persons of public prominence. We outline a principled decision-making framework to aid investigators. The Oxford CSA Framework has the potential to reduce unnecessary demand on police resources.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1600288","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45394806","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 : 2019-05-04DOI: 10.1080/0731129X.2019.1638597
Elizabeth Tiarks
Abstract Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants. Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.
{"title":"Restorative Justice, Consistency and Proportionality: Examining the Trade-off","authors":"Elizabeth Tiarks","doi":"10.1080/0731129X.2019.1638597","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1638597","url":null,"abstract":"Abstract Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants. Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1638597","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47413191","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 : 2019-05-04DOI: 10.1080/0731129X.2019.1638602
C. Ward
In The Age of Culpability, Gideon Yaffe argues that all minors who commit crimes should be treated more leniently by the criminal law than similarly situated adults. All “kids” deserve a break, he contends, because they are less culpable as a class than adults. They are less culpable because they less of a “say” over the content of the law, and they have less of a “say” because they are denied the right to vote. Yaffe attacks the belief that kids should get a break because they are psychologically different from adults in relevant ways, arguing that difference-based rationales for giving kids a break do not go far enough in justifying the result he seeks – lenient treatment by the criminal law for all kids, all the time. Yaffe proposes to replace the Difference Hypothesis with the affirmative argument that all kids deserve a break because all kids are denied the right to vote. This review essay raises questions about both Yaffe’s negative argument against what I call the “Difference Hypothesis”, and his affirmative argument that kids deserve leniency for their crimes because they lack voting rights. The review suggests that for purposes of deciding criminal policy, Yaffe’s affirmative proposal suffers from a number of potential weaknesses that call for further explanation, while the Difference Hypothesis has demonstrated a number of important strengths which Yaffe fails to consider.
{"title":"Criminal Culpability and the Political Meaning of Age","authors":"C. Ward","doi":"10.1080/0731129X.2019.1638602","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1638602","url":null,"abstract":"In The Age of Culpability, Gideon Yaffe argues that all minors who commit crimes should be treated more leniently by the criminal law than similarly situated adults. All “kids” deserve a break, he contends, because they are less culpable as a class than adults. They are less culpable because they less of a “say” over the content of the law, and they have less of a “say” because they are denied the right to vote. Yaffe attacks the belief that kids should get a break because they are psychologically different from adults in relevant ways, arguing that difference-based rationales for giving kids a break do not go far enough in justifying the result he seeks – lenient treatment by the criminal law for all kids, all the time. Yaffe proposes to replace the Difference Hypothesis with the affirmative argument that all kids deserve a break because all kids are denied the right to vote. This review essay raises questions about both Yaffe’s negative argument against what I call the “Difference Hypothesis”, and his affirmative argument that kids deserve leniency for their crimes because they lack voting rights. The review suggests that for purposes of deciding criminal policy, Yaffe’s affirmative proposal suffers from a number of potential weaknesses that call for further explanation, while the Difference Hypothesis has demonstrated a number of important strengths which Yaffe fails to consider.","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1638602","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44251736","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 : 2019-05-04DOI: 10.1080/0731129X.2019.1638611
Jessica Wolfendale
One of the questions raised by this important and thought-provoking collection of essays on torture is how and why the consensus that torture is wrong—a consensus enshrined in international law for decades—has become so fragile. As Scott Anderson writes in the introduction to this volume, “[h]ow did abusing and torturing prisoners suddenly become so popular?” (2). The chapters in this volume offer insights into this question from the perspectives of history, psychology, law, philosophy, and sociology. This interdisciplinary approach highlights important and often overlooked aspects of the torture debate. Yet, the questions that the authors take to be important (for example, about whether the justification of torture should even be contemplated) reflect different and sometimes incompatible normative assumptions about what torture is and about what matters in the torture debate. These assumptions, I shall argue, are shaped by, and play a role in shaping, the moral, political, and social narratives that contribute to or resist the toleration of torture in the US and elsewhere. Thus, while the disparate nature of the contributions (perhaps inevitably) undermine the cohesiveness of the volume as a whole, it illuminates, even if it does not resolve, larger questions about the place and function of academic debate in the history and use of torture. In this essay I use the chapters in this volume as a starting point to explore the connection between the torture debate and the toleration of torture. In section I, I consider why the justification of torture is a matter for debate at all. What do we learn by contemplating hypothetical cases of justified torture, such as those discussed by Jeff McMahan and David Sussman in ∗Jessica Wolfendale is Professor of Philosophy at Marquette University, Milwaukee, WI, USA. Email: Jessica.Wolfendale@ marquette.edu Criminal Justice Ethics, 2019 Vol. 38, No. 2, 138–152, https://doi.org/10.1080/0731129X.2019.1638611
{"title":"The Torture Debate and the Toleration of Torture","authors":"Jessica Wolfendale","doi":"10.1080/0731129X.2019.1638611","DOIUrl":"https://doi.org/10.1080/0731129X.2019.1638611","url":null,"abstract":"One of the questions raised by this important and thought-provoking collection of essays on torture is how and why the consensus that torture is wrong—a consensus enshrined in international law for decades—has become so fragile. As Scott Anderson writes in the introduction to this volume, “[h]ow did abusing and torturing prisoners suddenly become so popular?” (2). The chapters in this volume offer insights into this question from the perspectives of history, psychology, law, philosophy, and sociology. This interdisciplinary approach highlights important and often overlooked aspects of the torture debate. Yet, the questions that the authors take to be important (for example, about whether the justification of torture should even be contemplated) reflect different and sometimes incompatible normative assumptions about what torture is and about what matters in the torture debate. These assumptions, I shall argue, are shaped by, and play a role in shaping, the moral, political, and social narratives that contribute to or resist the toleration of torture in the US and elsewhere. Thus, while the disparate nature of the contributions (perhaps inevitably) undermine the cohesiveness of the volume as a whole, it illuminates, even if it does not resolve, larger questions about the place and function of academic debate in the history and use of torture. In this essay I use the chapters in this volume as a starting point to explore the connection between the torture debate and the toleration of torture. In section I, I consider why the justification of torture is a matter for debate at all. What do we learn by contemplating hypothetical cases of justified torture, such as those discussed by Jeff McMahan and David Sussman in ∗Jessica Wolfendale is Professor of Philosophy at Marquette University, Milwaukee, WI, USA. Email: Jessica.Wolfendale@ marquette.edu Criminal Justice Ethics, 2019 Vol. 38, No. 2, 138–152, https://doi.org/10.1080/0731129X.2019.1638611","PeriodicalId":35931,"journal":{"name":"Criminal Justice Ethics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/0731129X.2019.1638611","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46015462","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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