Pub Date : 2020-07-27DOI: 10.1525/nclr.2020.23.3.366
D. Spencer, Rose Ricciardelli
Across societies labels rarely are met with the degree of contempt and hatred that has become inherent in the label of “sex offender,” applied to those who offend the morals, ethics, and values of citizens because of the actions (or sexual affinities) in which they are believed to have engaged. In the current article, we examine the diverse ways the sex offender is assembled, drawing on assemblage theory. We examine the signifiers attached to bodies suspected, accused, and convicted of sex offenses and the material connections that come together as part of the chimeric sex offender assemblage. We demonstrate that the arrangement of signifiers and materiality reflects the complex landscape that is expressed in the image of the monstrous sex offender. Our contribution to the literature on sex offenders lies in demonstrating the chimeric nature of the sex offender.
{"title":"Assembling the Chimeric Sex Offender","authors":"D. Spencer, Rose Ricciardelli","doi":"10.1525/nclr.2020.23.3.366","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.3.366","url":null,"abstract":"Across societies labels rarely are met with the degree of contempt and hatred that has become inherent in the label of “sex offender,” applied to those who offend the morals, ethics, and values of citizens because of the actions (or sexual affinities) in which they are believed to have engaged. In the current article, we examine the diverse ways the sex offender is assembled, drawing on assemblage theory. We examine the signifiers attached to bodies suspected, accused, and convicted of sex offenses and the material connections that come together as part of the chimeric sex offender assemblage. We demonstrate that the arrangement of signifiers and materiality reflects the complex landscape that is expressed in the image of the monstrous sex offender. Our contribution to the literature on sex offenders lies in demonstrating the chimeric nature of the sex offender.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84591615","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 : 2020-07-27DOI: 10.1525/nclr.2020.23.3.315
A. Harris, Kimberly R. Kras, Christopher Lobanov-Rostovsky, Qurat Ann
Public policies requiring individuals convicted of sex offenses to register with law enforcement authorities, and in some cases granting public access to certain registry information, have been adopted by dozens of nations and provincial governments across the globe. Within the United States, sex offender registration and notification (SORN) policies are primarily established at the state level, but have come under increasing federal purview since the 1990s. Arising from a perceived need for improved interjurisdictional consistency and coordination, the 2006 Sex Offender Registration and Notification Act (SORNA) significantly broadened the scope and range of federal requirements for SORN systems operating within the states. Yet fourteen years following the law’s passage, a significant majority of states have yet to meet SORNA implementation thresholds, amidst an array of legal, political, fiscal, and practical challenges. Prior research has offered aggregate-level insights concerning the barriers to SORNA implementation, but has not captured the “back stories” of state policy experiences. Addressing this knowledge gap, the current study offers an in-depth examination of state experiences in aligning their policies with federal mandates. Drawing on data gathered from a diverse sample of ten states, the analysis reveals significant variation in the breadth and extent of required system changes and in the legal, political, and organizational dynamics surrounding state responses to federal oversight. Ultimately, the study offers insights and perspectives that can inform the continued refinement of federal and state policies, and improve the public safety effectiveness of the nation’s SORN systems.
{"title":"States’ SORNA Implementation Journeys","authors":"A. Harris, Kimberly R. Kras, Christopher Lobanov-Rostovsky, Qurat Ann","doi":"10.1525/nclr.2020.23.3.315","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.3.315","url":null,"abstract":"Public policies requiring individuals convicted of sex offenses to register with law enforcement authorities, and in some cases granting public access to certain registry information, have been adopted by dozens of nations and provincial governments across the globe. Within the United States, sex offender registration and notification (SORN) policies are primarily established at the state level, but have come under increasing federal purview since the 1990s. Arising from a perceived need for improved interjurisdictional consistency and coordination, the 2006 Sex Offender Registration and Notification Act (SORNA) significantly broadened the scope and range of federal requirements for SORN systems operating within the states. Yet fourteen years following the law’s passage, a significant majority of states have yet to meet SORNA implementation thresholds, amidst an array of legal, political, fiscal, and practical challenges. Prior research has offered aggregate-level insights concerning the barriers to SORNA implementation, but has not captured the “back stories” of state policy experiences. Addressing this knowledge gap, the current study offers an in-depth examination of state experiences in aligning their policies with federal mandates. Drawing on data gathered from a diverse sample of ten states, the analysis reveals significant variation in the breadth and extent of required system changes and in the legal, political, and organizational dynamics surrounding state responses to federal oversight. Ultimately, the study offers insights and perspectives that can inform the continued refinement of federal and state policies, and improve the public safety effectiveness of the nation’s SORN systems.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88552533","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}
A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.
{"title":"The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law","authors":"Douglas Husak","doi":"10.2139/SSRN.3656248","DOIUrl":"https://doi.org/10.2139/SSRN.3656248","url":null,"abstract":"A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89188868","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 : 2020-04-27DOI: 10.1525/nclr.2020.23.3.388
M. Perlin, H. Cucolo
From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law. To briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far more limited, and details are usually confined solely to police agencies. We believe that the implications of the laws and court decisions from other nations are necessary to consider when implementing US law reform in this area, and require far more attention than they have received from US scholars and legislators. This paper will proceed in the following manner. In Part I, we will consider the implications of international human rights law for cases involving the populations in question, and then assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We will also consider the human rights issues and violations that have resulted from the domestic enactment of “International Megan’s Law.” In Part II, we will apply comparative law, in an effort to determine how other nations have struggled with some of the basic issues that have been focused on by domestic jurisdictions, for the 20+ years since the Supreme Court’s decision in Kansas v. Hendricks, 521 U.S. 346 (1997). In Part III, we will assess the application of therapeutic jurisprudence (TJ) to the legal and human rights issues discussed prior, in an effort to determine whether other nations have more successfully implemented TJ principles to combat some of the seemingly-intractable problems raised in SVPA cases. In part IV, we offer some conclusions and some suggestions for US-based policy-makers in this contentious area of law and social policy.
从任何角度来看，我们的性暴力掠夺者(SVPA)法律都是一个悲惨的失败。在本文中，我们提出了一种新的方法:将国际人权法作为有关人口权利的来源，并从比较法的角度考虑这一问题。简而言之，许多国家制定的法律既反映了美国民事承诺法学的早期发展，又与之相矛盾。然而，在这些国家，以国际人权法为基础，对社区收容和预防性拘留法的挑战更为成功。此外，登记处的通知通常要有限得多，细节通常仅限于警察机构。我们认为，在实施美国在这一领域的法律改革时，有必要考虑其他国家的法律和法院判决的影响，并且需要比美国学者和立法者得到更多的关注。本文将按以下方式进行。在第一部分中，我们将考虑国际人权法对涉及有关人口的案件的影响，然后评估在处理有关案件时国内司法管辖区采用这种法律的现实程度。我们还将审议因国内实施“国际梅甘法”而导致的人权问题和侵犯行为。在第二部分中，我们将运用比较法，以确定自最高法院在堪萨斯诉亨德里克斯案(521 U.S. 346, 1997)中作出裁决以来的20多年里，其他国家是如何努力解决国内司法部门关注的一些基本问题的。在第三部分中，我们将评估治疗法学(TJ)在之前讨论的法律和人权问题上的应用，以确定其他国家是否更成功地实施了TJ原则，以应对SVPA案件中提出的一些看似棘手的问题。在第四部分，我们为美国的政策制定者在这个有争议的法律和社会政策领域提供了一些结论和建议。
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Pub Date : 2020-04-15DOI: 10.1525/nclr.2020.23.2.196
C. Hawes
Public prosecutors are a key element within the legal complex, and crucial to the effective implementation of legal reforms. China’s procurators (public prosecutors) have previously colluded with local governments, police, and courts to “strike hard” against crime while overlooking systemic beating and torture of detained suspects to obtain confessions, shoddy investigative practices, and frequent miscarriages of justice. However, fifteen sets of Guiding Cases issued by the Supreme People’s Procuratorate since 2010 promote an unprecedented change in Chinese procurator culture away from “striking hard” to substantive protection of criminal suspects’ rights and exclusion of tainted evidence. They reinforce criminal procedure reforms since 2010 by demonstrating how procurators should protect innocent people against wrongful convictions and police brutality. They also stress the broader duty of China’s procurators to uphold the public interest against corrupt businesses and officials, especially in food safety, land-taking, and environmental protection cases. With other key actors in China’s “legal complex”—rights lawyers and civil society groups—still suppressed by the government, this effort to transform procurator culture is an essential, though still incomplete, step on China’s tortuous path toward a fair and just legal system.
{"title":"Transforming the Culture of Chinese Prosecutors Through Guiding Cases","authors":"C. Hawes","doi":"10.1525/nclr.2020.23.2.196","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.2.196","url":null,"abstract":"Public prosecutors are a key element within the legal complex, and crucial to the effective implementation of legal reforms. China’s procurators (public prosecutors) have previously colluded with local governments, police, and courts to “strike hard” against crime while overlooking systemic beating and torture of detained suspects to obtain confessions, shoddy investigative practices, and frequent miscarriages of justice. However, fifteen sets of Guiding Cases issued by the Supreme People’s Procuratorate since 2010 promote an unprecedented change in Chinese procurator culture away from “striking hard” to substantive protection of criminal suspects’ rights and exclusion of tainted evidence. They reinforce criminal procedure reforms since 2010 by demonstrating how procurators should protect innocent people against wrongful convictions and police brutality. They also stress the broader duty of China’s procurators to uphold the public interest against corrupt businesses and officials, especially in food safety, land-taking, and environmental protection cases. With other key actors in China’s “legal complex”—rights lawyers and civil society groups—still suppressed by the government, this effort to transform procurator culture is an essential, though still incomplete, step on China’s tortuous path toward a fair and just legal system.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85415849","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 : 2020-04-15DOI: 10.1525/nclr.2020.23.2.300
Lissa Griffin
{"title":"Review: Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission, by Carolyn Hoyle and Mai Sato","authors":"Lissa Griffin","doi":"10.1525/nclr.2020.23.2.300","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.2.300","url":null,"abstract":"","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90905093","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 : 2020-04-15DOI: 10.1525/NCLR.2020.23.2.170
N. Varsava, Judith Foo, Elizabeth Villarreal, David G Walchak
In May 2018, the U.S. Supreme Court issued its opinion in the case of McCoy v. Louisiana, holding that defendants have a constitutional right to maintain their innocence at trial. Under McCoy, lawyers may not concede their clients’ guilt during trial when their clients insist on maintaining innocence, even if doing so would be a reasonable tactical decision. In this paper, we show how the case implicates an array of common problems concerning lawyer-client disagreement, and we argue that the Model Rules of Professional Conduct offer deficient guidance in this area. In particular, in relying on lawyer withdrawal as a remedy for lawyer-client disagreement, the Model Rules neglect to recognize that lawyers may have an obligation to stick with their clients despite serious disagreements over aspects of the representation. The Rules also gloss over the considerable administrative burden associated with withdrawal. After delineating some problems with the Model Rules’ approach to lawyer-client disagreement, we propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate.
{"title":"Allocating Authority Between Lawyers And Their Clients After McCoy v. Louisiana","authors":"N. Varsava, Judith Foo, Elizabeth Villarreal, David G Walchak","doi":"10.1525/NCLR.2020.23.2.170","DOIUrl":"https://doi.org/10.1525/NCLR.2020.23.2.170","url":null,"abstract":"In May 2018, the U.S. Supreme Court issued its opinion in the case of McCoy v. Louisiana, holding that defendants have a constitutional right to maintain their innocence at trial. Under McCoy, lawyers may not concede their clients’ guilt during trial when their clients insist on maintaining innocence, even if doing so would be a reasonable tactical decision. In this paper, we show how the case implicates an array of common problems concerning lawyer-client disagreement, and we argue that the Model Rules of Professional Conduct offer deficient guidance in this area. In particular, in relying on lawyer withdrawal as a remedy for lawyer-client disagreement, the Model Rules neglect to recognize that lawyers may have an obligation to stick with their clients despite serious disagreements over aspects of the representation. The Rules also gloss over the considerable administrative burden associated with withdrawal. After delineating some problems with the Model Rules’ approach to lawyer-client disagreement, we propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87659135","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 : 2020-04-15DOI: 10.1525/NCLR.2020.23.2.271
Hadassa Noorda
This article sets out guidelines for law reform processes to account for the challenges that terrorism may pose to the rule of law and democracy. As a response to terrorism, an increase in reforms of laws and administrative measures has been seen across jurisdictions. The substantive offenses themselves have been criticized, but as of yet, the theoretical issues that may arise during processes of reform have not been considered. However, law reform as a direct and immediate response to such events may curtail the rule of law and democracy: there may be inadequate time for debate in the legislature regarding proposed measures, or the debate may be centered on arguments based on fear and hate toward perpetrators. This article argues that this may curtail individual autonomy of citizens and truncate democracy. It sets out guidelines for how processes of law reform may treat people as capable of self-moderation.
{"title":"Law Reform as a Response to Terrorist Threats","authors":"Hadassa Noorda","doi":"10.1525/NCLR.2020.23.2.271","DOIUrl":"https://doi.org/10.1525/NCLR.2020.23.2.271","url":null,"abstract":"This article sets out guidelines for law reform processes to account for the challenges that terrorism may pose to the rule of law and democracy. As a response to terrorism, an increase in reforms of laws and administrative measures has been seen across jurisdictions. The substantive offenses themselves have been criticized, but as of yet, the theoretical issues that may arise during processes of reform have not been considered. However, law reform as a direct and immediate response to such events may curtail the rule of law and democracy: there may be inadequate time for debate in the legislature regarding proposed measures, or the debate may be centered on arguments based on fear and hate toward perpetrators. This article argues that this may curtail individual autonomy of citizens and truncate democracy. It sets out guidelines for how processes of law reform may treat people as capable of self-moderation.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79410493","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}
This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.
{"title":"The Perestroika of International Criminal Law: Soviet Reforms and The Promise of Legal Primacy in International Governance","authors":"M. Christensen","doi":"10.2139/ssrn.3502204","DOIUrl":"https://doi.org/10.2139/ssrn.3502204","url":null,"abstract":"This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81741215","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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