Pub Date : 2021-07-01DOI: 10.1525/nclr.2021.24.3.275
Kiel Brennan-Marquez, Vincent Chiao
Which interpretive tasks should be delegated to machines? This question has become a focal point of “tech governance” debates. One familiar answer is that while machines are capable of implementing tasks whose ends are uncontroversial, machine delegation is inappropriate for tasks that elude human consensus. After all, if human experts cannot agree about the nature of a task, what hope is there for machines? Here, we turn this position around. When humans disagree about the nature of a task, that should be prima facie grounds for machine delegation, not against it. The reason has to do with fairness: affected parties should be able to predict the outcomes of particular cases. Indeterminate decision-making environments—those in which human disagree about ends—are inherently unpredictable in that, for any given case, the distribution of likely outcomes will depend on a specific decision maker’s view of the relevant end. This injects an irreducible dynamic of randomization into the decision-making process from the perspective of non-repeat players. To the extent machine decisions aggregate across disparate views of a task’s relevant ends, they promise improvement on this specific dimension of predictability. Whatever the other virtues and drawbacks of machine decision-making, this gain should be recognized and factored into governance. The essay has two parts. In the first, we draw a distinction between determinacy and certainty as epistemic properties and fashioning a taxonomy of decision types. In the second part, we bring the formal point alive through a case study of criminal sentencing.
{"title":"Algorithmic Decision-Making When Humans Disagree on Ends","authors":"Kiel Brennan-Marquez, Vincent Chiao","doi":"10.1525/nclr.2021.24.3.275","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.3.275","url":null,"abstract":"Which interpretive tasks should be delegated to machines? This question has become a focal point of “tech governance” debates. One familiar answer is that while machines are capable of implementing tasks whose ends are uncontroversial, machine delegation is inappropriate for tasks that elude human consensus. After all, if human experts cannot agree about the nature of a task, what hope is there for machines?\u0000 Here, we turn this position around. When humans disagree about the nature of a task, that should be prima facie grounds for machine delegation, not against it. The reason has to do with fairness: affected parties should be able to predict the outcomes of particular cases. Indeterminate decision-making environments—those in which human disagree about ends—are inherently unpredictable in that, for any given case, the distribution of likely outcomes will depend on a specific decision maker’s view of the relevant end. This injects an irreducible dynamic of randomization into the decision-making process from the perspective of non-repeat players. To the extent machine decisions aggregate across disparate views of a task’s relevant ends, they promise improvement on this specific dimension of predictability. Whatever the other virtues and drawbacks of machine decision-making, this gain should be recognized and factored into governance.\u0000 The essay has two parts. In the first, we draw a distinction between determinacy and certainty as epistemic properties and fashioning a taxonomy of decision types. In the second part, we bring the formal point alive through a case study of criminal sentencing.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"23 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74696323","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 : 2021-07-01DOI: 10.1525/nclr.2021.24.3.433
J. Vorhaus
Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court’s conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.
{"title":"Bringing People Down","authors":"J. Vorhaus","doi":"10.1525/nclr.2021.24.3.433","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.3.433","url":null,"abstract":"Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court’s conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"20 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91013267","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 : 2021-07-01DOI: 10.1525/nclr.2021.24.3.397
W. R. Thomas
A recent wave of expressive accounts of corporate criminal law operate on the promise that corporate punishment can express a unique form of condemnation not capturable through civil enforcement. Unfortunately, the realities of corporate sentencing have thus far failed to make good on this expressive promise. Viewed in light of existing conventions that imbue meaning into our practices of punishment, corporate sentences rarely impose hard treatment in a manner or degree that these conventions seem to require. Accordingly, standard corporate sanctions turn out to be ill-suited to deliver—and, often, will likely undermine—the stigmatic punch upon which expressive defenses of corporate criminal law depend. A common response to this conventional problem with corporate sentencing has been to propose more, and harsher, corporate punishments. However, this approach overlooks the extent to which corporate punishment derives its stigmatic force from preexisting norms and conventions concerning individual punishment. If trying to improve corporate punishment, then, expressivists might instead seek either to leverage or to dismantle the underlying conventions that give existing sanctions meaning. An example of the former strategy would be to revitalize long-neglected proposals for corporate shaming by adopting a criminal convention currently absent from the corporate space—namely, the pervasive, stigmatic application of epithets like “thief” or “felon.” An example of the latter would be to join criminal justice reformers in targeting conventions that, in recent decades, have enabled increasingly draconian sentencing practices. On this view, dissolving corporate sentencing’s conventional problem may represent a further, incidental benefit of systemic criminal justice reform.
{"title":"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)","authors":"W. R. Thomas","doi":"10.1525/nclr.2021.24.3.397","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.3.397","url":null,"abstract":"A recent wave of expressive accounts of corporate criminal law operate on the promise that corporate punishment can express a unique form of condemnation not capturable through civil enforcement. Unfortunately, the realities of corporate sentencing have thus far failed to make good on this expressive promise. Viewed in light of existing conventions that imbue meaning into our practices of punishment, corporate sentences rarely impose hard treatment in a manner or degree that these conventions seem to require. Accordingly, standard corporate sanctions turn out to be ill-suited to deliver—and, often, will likely undermine—the stigmatic punch upon which expressive defenses of corporate criminal law depend. A common response to this conventional problem with corporate sentencing has been to propose more, and harsher, corporate punishments. However, this approach overlooks the extent to which corporate punishment derives its stigmatic force from preexisting norms and conventions concerning individual punishment.\u0000 If trying to improve corporate punishment, then, expressivists might instead seek either to leverage or to dismantle the underlying conventions that give existing sanctions meaning. An example of the former strategy would be to revitalize long-neglected proposals for corporate shaming by adopting a criminal convention currently absent from the corporate space—namely, the pervasive, stigmatic application of epithets like “thief” or “felon.” An example of the latter would be to join criminal justice reformers in targeting conventions that, in recent decades, have enabled increasingly draconian sentencing practices. On this view, dissolving corporate sentencing’s conventional problem may represent a further, incidental benefit of systemic criminal justice reform.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"18 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91212439","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 : 2021-07-01DOI: 10.1525/nclr.2021.24.3.301
Jacob Bronsther
“Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.
{"title":"The Limits of Retributivism","authors":"Jacob Bronsther","doi":"10.1525/nclr.2021.24.3.301","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.3.301","url":null,"abstract":"“Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"11 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89194385","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 : 2021-04-01DOI: 10.1525/NCLR.2021.24.2.115
J. Woods
This article, prepared for the special issue on investigations, presents an original empirical analysis of the role of the motor vehicle in shaping how officers describe experiencing violence and perceiving danger during vehicle stops. Tens of millions of traffic stops occur every year, making vehicle stops the most common interaction that civilians have with law enforcement. Although traffic stops are commonly described as dangerous settings for police officers, little is known about how the motor vehicle itself shapes officer descriptions, perceptions, and experiences of danger and harm during these stops. The presented findings make at least four key contributions to scholarship and policing law and policy. First, the findings inform unfolding criminal law reforms surrounding the policing and criminalization of traffic offenses, which are major sources of racial disparity in, and net-widening of, the criminal justice system today. Second, the findings prompt questions about whether and when legal actors, and especially actors that regulate the police, should defer to officer danger narratives involving motor vehicles. Third, the findings prompt novel questions about technology and the law, and more specifically, the ability of new motor vehicle technologies to help diffuse officer perceptions of danger that stem from motor vehicles. Fourth and finally, the findings illustrate a need to pay greater attention to the motor vehicle as a source of officer danger and harm in official policing data in order to accurately measure the risks and costs of policing during vehicle stops.
{"title":"Police Escalation and the Motor Vehicle","authors":"J. Woods","doi":"10.1525/NCLR.2021.24.2.115","DOIUrl":"https://doi.org/10.1525/NCLR.2021.24.2.115","url":null,"abstract":"This article, prepared for the special issue on investigations, presents an original empirical analysis of the role of the motor vehicle in shaping how officers describe experiencing violence and perceiving danger during vehicle stops. Tens of millions of traffic stops occur every year, making vehicle stops the most common interaction that civilians have with law enforcement. Although traffic stops are commonly described as dangerous settings for police officers, little is known about how the motor vehicle itself shapes officer descriptions, perceptions, and experiences of danger and harm during these stops.\u0000 The presented findings make at least four key contributions to scholarship and policing law and policy. First, the findings inform unfolding criminal law reforms surrounding the policing and criminalization of traffic offenses, which are major sources of racial disparity in, and net-widening of, the criminal justice system today. Second, the findings prompt questions about whether and when legal actors, and especially actors that regulate the police, should defer to officer danger narratives involving motor vehicles. Third, the findings prompt novel questions about technology and the law, and more specifically, the ability of new motor vehicle technologies to help diffuse officer perceptions of danger that stem from motor vehicles. Fourth and finally, the findings illustrate a need to pay greater attention to the motor vehicle as a source of officer danger and harm in official policing data in order to accurately measure the risks and costs of policing during vehicle stops.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"19 1","pages":"115-155"},"PeriodicalIF":0.4,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81552987","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 : 2021-04-01DOI: 10.1525/NCLR.2021.24.2.156
Melissa Hamilton
Algorithmic risk assessment is hailed as offering criminal justice officials a science-led system to triage offender populations to better manage low- versus high-risk individuals. Risk algorithms have reached the pretrial world as a best practices method to aid in reforms to reduce reliance upon money bail and to moderate pretrial detention’s material contribution to mass incarceration. Still, these promises are elusive if algorithmic tools are unable to achieve sufficient accurate rates in predicting criminal justice failure. This article presents an empirical study of the most popular pretrial risk tool used in the United States. Developers promote the Public Safety Assessment (PSA) as a national tool. Little information is known about the PSA’s developmental methodologies or performance statistics. The dearth of intelligence is alarming as the tool is being used in high-stakes decisions as to whether to detain individuals who have not yet been convicted of any crime. This study uncovers evidence of performance accuracy using a variety of validity metrics and, as a novel contribution, investigates the use of the tool in three diverse jurisdictions to evaluate how well the tool generalizes in real-world settings. Policy implications of the findings may be enlightening to officials, practitioners, and other stakeholders interested in pretrial justice as well as in the use of algorithmic risk across criminal justice decision points.
{"title":"Evaluating Algorithmic Risk Assessment","authors":"Melissa Hamilton","doi":"10.1525/NCLR.2021.24.2.156","DOIUrl":"https://doi.org/10.1525/NCLR.2021.24.2.156","url":null,"abstract":"Algorithmic risk assessment is hailed as offering criminal justice officials a science-led system to triage offender populations to better manage low- versus high-risk individuals. Risk algorithms have reached the pretrial world as a best practices method to aid in reforms to reduce reliance upon money bail and to moderate pretrial detention’s material contribution to mass incarceration. Still, these promises are elusive if algorithmic tools are unable to achieve sufficient accurate rates in predicting criminal justice failure. This article presents an empirical study of the most popular pretrial risk tool used in the United States. Developers promote the Public Safety Assessment (PSA) as a national tool. Little information is known about the PSA’s developmental methodologies or performance statistics. The dearth of intelligence is alarming as the tool is being used in high-stakes decisions as to whether to detain individuals who have not yet been convicted of any crime. This study uncovers evidence of performance accuracy using a variety of validity metrics and, as a novel contribution, investigates the use of the tool in three diverse jurisdictions to evaluate how well the tool generalizes in real-world settings. Policy implications of the findings may be enlightening to officials, practitioners, and other stakeholders interested in pretrial justice as well as in the use of algorithmic risk across criminal justice decision points.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"20 1","pages":"156-211"},"PeriodicalIF":0.4,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83298061","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 : 2021-04-01DOI: 10.1525/NCLR.2021.24.2.212
A. Heinze
This article examines the rationales to exclude evidence before International Criminal Tribunals that has been illegally obtained by private investigators. The appeal of private investigations has now reached the level of international criminal justice, with the establishment of the Commission for International Justice and Accountability. Investigative staff at the International Criminal Court and other International Criminal Tribunals are dependent on the work undertaken in the field by human rights monitors as fact finders, employed by IGOs, NGOs, and, in some cases, by governmental agencies. Considering the importance of private investigators for the administration of those Tribunals, potential dangers of such a cooperation easily take a backseat in a car that is driven by the anti-impunity agenda. Scenarios of investigators offering money to witnesses in return for information about a suspect and his or her criminal activities are a reality. While case law has addressed the topic of illegally obtained evidence by national authorities, the fate of evidence collected by private individuals in breach of human rights has rather been neglected. This article provides a conceptual basis for the exclusion or admission of this evidence.
{"title":"Evidence Illegally Obtained by Private Investigators and Its Use Before International Criminal Tribunals","authors":"A. Heinze","doi":"10.1525/NCLR.2021.24.2.212","DOIUrl":"https://doi.org/10.1525/NCLR.2021.24.2.212","url":null,"abstract":"This article examines the rationales to exclude evidence before International Criminal Tribunals that has been illegally obtained by private investigators. The appeal of private investigations has now reached the level of international criminal justice, with the establishment of the Commission for International Justice and Accountability. Investigative staff at the International Criminal Court and other International Criminal Tribunals are dependent on the work undertaken in the field by human rights monitors as fact finders, employed by IGOs, NGOs, and, in some cases, by governmental agencies. Considering the importance of private investigators for the administration of those Tribunals, potential dangers of such a cooperation easily take a backseat in a car that is driven by the anti-impunity agenda. Scenarios of investigators offering money to witnesses in return for information about a suspect and his or her criminal activities are a reality. While case law has addressed the topic of illegally obtained evidence by national authorities, the fate of evidence collected by private individuals in breach of human rights has rather been neglected. This article provides a conceptual basis for the exclusion or admission of this evidence.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"20 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82661222","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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