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De-Democratizing Criminal Law 刑法去民主化
Q2 Social Sciences Pub Date : 2020-01-02 DOI: 10.1080/0731129X.2020.1736371
B. Levin
Writing twenty years ago, the late Harvard Law professor William Stuntz diagnosed a set of “pathological politics” at the heart of US criminal law. Stuntz sought to explain why carceral policies in...
已故哈佛大学法学教授William Stuntz在20年前撰文指出,美国刑法的核心是一套“病态政治”。Stuntz试图解释为什么在。。。
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引用次数: 0
New Public Management and the Police Profession at Play 新公共管理与警察职业
Q2 Social Sciences Pub Date : 2020-01-02 DOI: 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.
本文探讨了相互竞争的制度逻辑如何影响警察的知识基础、关于良好警察实践和组织身份的想法。本文以警务为背景,讨论了人本主义的专业警察逻辑和工具性的新公共管理逻辑之间的紧张关系。人本主义的职业警察逻辑在上世纪六七十年代逐渐兴起,而近二十年来,警察队伍一直在按照NPM逻辑进行改革。通过对警察部队的定性访谈和定量研究,本文调查了构成规范良好实践的想法与这两种对立逻辑的关系。一个重要的发现是,尽管多年来NPM一直是主导的指导逻辑,但人文主义的专业逻辑仍然存在。然而,向NPM逻辑的转变使知识库向更以证据为导向的方向转变,并影响了规范良好实践的想法,特别是在警察管理中。
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引用次数: 7
Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims 在无效协助律师索赔中保护忠诚和保密的持续义务
Q2 Social Sciences Pub Date : 2020-01-02 DOI: 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.
律师无效协助诉讼的成败在很大程度上取决于审判律师的证词。因此,政府通常会单独与审判律师联系,以便对这种申诉作出答复。但是,即使在代理结束后,审判律师仍然受到对其前客户忠诚和保密的义务的约束,以及律师-客户特权,受限于对无效索赔作出回应的合理必要的信息的有限放弃。然而,由于他们在诉讼中的利益,审判律师和政府都无法客观地决定哪些信息属于豁免范围。为确保审判律师尊重其对前委托人的道德义务,并保护律师-委托人关系的神圣性,定罪后法院应禁止审判律师单方面与政府沟通。相反,这些法院应该要求所有此类交流都记录在案——最好是在证词中进行,但也可以通过宣誓书进行。
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引用次数: 0
Scambaiting on the Spectrum of Digilantism 数字主义光谱上的诈骗
Q2 Social Sciences Pub Date : 2019-09-02 DOI: 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.
Digilantism是通过在网上曝光所谓的不法行为来进行惩罚。追捕恋童癖者就是一个例子,这种做法对许多传统的民团主义的反对意见是开放的。但它所处的范围包含了许多其他类型的digilantim。诈骗是其中一种。它包括吸引不同类型的在线预付费欺诈犯罪者的在线方法。它的特点是,骗子和骗子之间通过电子邮件进行长时间的交流。这些交流主要是接地气的,偶尔会有关于虚拟资金转移细节的激烈对话,或者涉及到对付款延迟的解释。如果他们浪费了目标的大量时间,他们的目的就会成功,但他们也可以作为一种喜剧艺术形式来追求。诈骗交易似乎经常(但并非总是)相对无害。因此,它们有助于理解在愚笨谱系中道德上允许的愚笨的区域。并不是说骗子从来不会走得太远,而是他们的典型武器造成的伤害和风险远远小于其他勤奋的人,而且实际的诈骗规范之所以被选择,是因为它们相对无害。
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引用次数: 11
Rights in Criminal Law in the Light of a Will Theory 意志理论视野下的刑法权利
Q2 Social Sciences Pub Date : 2019-09-02 DOI: 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.
到目前为止,权利意志理论一直被认为无法捕捉刑法中的个人权利。因此,意志理论的拥护者为刑法不赋予个人权利的主张进行了辩护。在这篇文章中,我首先认为刑法确实赋予了个人权利,其次,权利的意志理论可以增强我们对这些权利的理解。该叙述的两个主要含义是:刑法中的恶意不适合犯罪原则,以及将惩罚视为赔偿的理论框架。
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引用次数: 0
In and Beyond Misdemeanorland 在轻罪之外
Q2 Social Sciences Pub Date : 2019-09-02 DOI: 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
《轻罪之地》一书全面而深刻地分析了下级法院对纽约市实施破窗警务的反应,以及20世纪90年代和21世纪初产生的大量逮捕行动。根据行政警察和法院的数据,以及广泛的人种学观察和对法院行为者和被告的采访,Kohler-Hausmann认为,至少在纽约市,下级法院的工作最好被理解为一种“管理正义”的形式,在这种形式中,法院行为者试图管理那些因被捕而被质疑其治理能力的人。这种司法模式涉及要求和评估他们在一段时间内——通常是很长一段时间——与法院的互动。在发展这一概念模型的过程中,并通过利用丰富的经验数据将其存在和影响带入生活,轻罪地对法庭和社会控制的新兴文献做出了宝贵的贡献。Kohler-Hausmann首先指出,因轻罪被捕的人比因重罪被捕的人多得多,而且许多被卷入低级法院的人最终既没有被定罪,也没有被监禁。不过,她强调,这种纠缠往往会产生一系列破坏稳定的影响,总的来说,会加剧种族和阶级的不平等。只要相关文献倾向于关注该系统的重罪方面,它就无法捕捉到刑事司法系统的范围,并歪曲了典型的刑事司法遭遇。要理解法院程序和非监禁制裁如何创造一种分散的、后果严重的社会控制模式,我们就必须关注下级法院的运作和效果。Kohler-Hausmann特别感兴趣的是,下级法院的演员如何应对纽约市实施“破窗警务”导致的逮捕人数急剧上升。凯瑟琳·贝克特(Katherine Beckett),美国华盛顿州西雅图市华盛顿大学社会学系教授。电子邮件:kbeckett@wu.edu刑事司法伦理,2019年第38卷第3期,221-229,https://doi.org/10.1080/0731129X.2019.1682263
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引用次数: 0
Some Remarks on Criminology and Moral Philosophy 论犯罪学与道德哲学
Q2 Social Sciences Pub Date : 2019-09-02 DOI: 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.
哲学和犯罪学的最新发展表明,这两个学科在许多重要方面可以相互影响。许多哲学家对探索哲学主张的经验方面越来越感兴趣,犯罪学家正在寻找超越所谓事实/价值区别的方法,并重新发现事实的道德意义,特别是在惩罚和缓刑方面。在最近的一些犯罪学研究中,有与英国道德家如大卫·休谟和亚当·斯密以及亚里士多德的隐含联系。本文阐述了这些联系以及哲学和犯罪学相互影响的一些可能性。
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引用次数: 0
When Should the Police Investigate Cases of Non-recent Child Sexual Abuse? 警方应在何时调查近期发生的儿童性虐待案件?
Q2 Social Sciences Pub Date : 2019-05-04 DOI: 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.
近年来,儿童性虐待(CSA)和儿童性剥削(CSE)受到了广泛关注。受害者通常不会在事件发生时报告他们的遭遇,而且机构在事件发生数年或数十年后向警方举报他们的担忧,这种情况越来越普遍。罪行并非最近发生,受害者(可能易受伤害)缺乏参与,加上调查的巨大资源负担,使得决定是否继续进行调查变得复杂,并在道德上具有挑战性。虽然总是会有有利于侦查的推定,但在某些情况下,反对侦查的理由会超过这种推定。我们审查在决定是否与受害者接触并继续调查一个特定的非最近的CSA案件时所考虑的利害关系。为了论证“广泛权利”的方法,我们确定了与(1)受害者、(2)刑事司法和犯罪预防、(3)有限资源和(4)合法性相关的考虑因素。我们认为,在其他条件相同的情况下,非近期和当前的调查同样值得调查。我们评估嫌疑人是公众知名人士的影响。我们概述了一个有原则的决策框架,以帮助调查人员。牛津CSA框架有可能减少对警察资源的不必要需求。
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引用次数: 4
Restorative Justice, Consistency and Proportionality: Examining the Trade-off 恢复性正义、一致性和相称性:考察权衡
Q2 Social Sciences Pub Date : 2019-05-04 DOI: 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.
摘要作为量刑机制运作的恢复性司法会议涉及在授权非专业参与者自行作出决定与一致性和相称性要求之间进行权衡,这是既定的量刑原则。在目前的恢复性司法实践中,这种权衡往往更有利于一致性和相称性,而牺牲了非专业参与者的权力。赋权是恢复性司法的关键好处的核心,例如减少累犯和提高受害者满意度。然而,它对恢复性司法效力的重要性并不总是得到适当承认。除了缺乏承认之外,一致性和相称性原则(特别是在考虑恢复性司法时提出这些原则的方式)在概念和实践上都存在问题,这些问题往往被忽视。因此,人们倾向于对这些原则相对于赋权的必要至高无上进行假设。本文件敦促更多地认识到赋予权力在恢复性司法中的重要性,同时更好地认识到一致性和相称性问题,以期挑战关于必须如何进行权衡的假设。
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引用次数: 4
Criminal Culpability and the Political Meaning of Age 刑事罪责与年龄的政治意义
Q2 Social Sciences Pub Date : 2019-05-04 DOI: 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.
Gideon Yaffe在《有罪时代》一书中认为,所有犯罪的未成年人都应该受到刑法的宽大处理,而不是处境相似的成年人。他认为,所有的“孩子”都应该休息一下,因为他们作为一个阶层比成年人更不应受谴责。他们的罪责较小,因为他们对法律内容没有“发言权”,也因为他们被剥夺了投票权,所以他们没有“发言”权。Yaffe抨击了这样一种观点,即孩子们应该休息一下,因为他们在心理上与成年人在相关方面不同,他认为,给孩子休息的基于差异的理由不足以证明他所寻求的结果是合理的——刑法一直对所有孩子都给予宽大处理。Yaffe建议用肯定的论点取代差异假说,即所有孩子都应该休息一下,因为所有孩子都被剥夺了投票权。这篇评论文章对Yaffe反对我所说的“差异假说”的否定论点和他认为孩子们因为缺乏投票权而应该得到宽大处理的肯定论点提出了质疑。审查表明,为了决定刑事政策,Yaffe的肯定性建议存在一些潜在的弱点,需要进一步解释,而差异假说证明了Yaffe没有考虑的一些重要优势。
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引用次数: 0
期刊
Criminal Justice Ethics
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