Pub Date : 2019-05-01DOI: 10.1525/NCLR.2019.22.2.164
M. J. Nkhata
In 2007, the High Court of Malawi, sitting as a constitutional court, declared that the mandatory sentence of death for murder was unconstitutional. At the time of the High Court’s invalidation of the mandatory death penalty, Malawi’s prisons had over 190 prisoners serving their sentences as a result of the imposition of the mandatory death penalty. Some of these prisoners were on death row, while others had their sentences commuted to life imprisonment. When the mandatory death penalty was declared unconstitutional, the High Court also directed that all prisoners serving their sentences for murder should be brought before the High Court so that they could receive individual sentences taking into account the circumstances of the offense, the offender, as well as the interests of the victim(s). This paper interrogates the application of the sentencing discretion that was introduced with the outlawing of the mandatory death penalty in Malawi. Specifically, the paper analyzes decisions that have emerged from the resentencing of capital offenders in so far as judges have either considered or refused to consider the relevance of post-conviction factors during the resentencing. It is this paper’s central finding that a refusal to consider post-conviction factors, as some judges held, was not only unjustified but was also contrary to Malawi’s Criminal Procedure and Evidence Code and the Constitution of the Republic of Malawi. This refusal, the paper argues, resulted in sentencing discrepancies as well as a failure to properly utilize the discretion vested in the courts for purposes of sentencing.
{"title":"Emerging Trends from the Resentencing of Capital Offenders in Malawi","authors":"M. J. Nkhata","doi":"10.1525/NCLR.2019.22.2.164","DOIUrl":"https://doi.org/10.1525/NCLR.2019.22.2.164","url":null,"abstract":"In 2007, the High Court of Malawi, sitting as a constitutional court, declared that the mandatory sentence of death for murder was unconstitutional. At the time of the High Court’s invalidation of the mandatory death penalty, Malawi’s prisons had over 190 prisoners serving their sentences as a result of the imposition of the mandatory death penalty. Some of these prisoners were on death row, while others had their sentences commuted to life imprisonment. When the mandatory death penalty was declared unconstitutional, the High Court also directed that all prisoners serving their sentences for murder should be brought before the High Court so that they could receive individual sentences taking into account the circumstances of the offense, the offender, as well as the interests of the victim(s). This paper interrogates the application of the sentencing discretion that was introduced with the outlawing of the mandatory death penalty in Malawi. Specifically, the paper analyzes decisions that have emerged from the resentencing of capital offenders in so far as judges have either considered or refused to consider the relevance of post-conviction factors during the resentencing. It is this paper’s central finding that a refusal to consider post-conviction factors, as some judges held, was not only unjustified but was also contrary to Malawi’s Criminal Procedure and Evidence Code and the Constitution of the Republic of Malawi. This refusal, the paper argues, resulted in sentencing discrepancies as well as a failure to properly utilize the discretion vested in the courts for purposes of sentencing.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74757817","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 : 2019-05-01DOI: 10.1525/NCLR.2019.22.2.140
Emily Gray
The average amount of time that death row inmates spend on death row has ballooned over the past decade, and for death row inmates in the state of Texas, the entire duration of that increased time will be spent in solitary confinement. This raises the following question: Is solitary confinement now considered to be part of the punishment, one that may be worse than the death penalty itself? This article discusses the history of solitary confinement in U.S. prisons and cites scientific literature which posits that long-term solitary confinement can cause serious psychological damage. It examines “death row syndrome,” a term that refers to the psychological illness or disorder exhibited by an inmate who has spent a prolonged period of time in harsh conditions on death row. The article reviews the Polunsky Unit, which currently houses Texas’s death row and has been described as one of the worst prisons in the United States. The article also discusses the long history of Lackey claims, which allege that prolonged confinements under a death sentence breach the Eighth Amendment’s prohibition against cruel and unusual punishment. The unresolved dissent within the Supreme Court regarding this subject is presented and discussed. This article contends that the prolonged solitary confinement of a Texas inmate on death row is a violation of the Eighth Amendment, and concludes that the only solution is to end the practice of automatic and permanent solitary confinement.
{"title":"Decades in Death’s Twilight","authors":"Emily Gray","doi":"10.1525/NCLR.2019.22.2.140","DOIUrl":"https://doi.org/10.1525/NCLR.2019.22.2.140","url":null,"abstract":"The average amount of time that death row inmates spend on death row has ballooned over the past decade, and for death row inmates in the state of Texas, the entire duration of that increased time will be spent in solitary confinement. This raises the following question: Is solitary confinement now considered to be part of the punishment, one that may be worse than the death penalty itself?\u0000 This article discusses the history of solitary confinement in U.S. prisons and cites scientific literature which posits that long-term solitary confinement can cause serious psychological damage. It examines “death row syndrome,” a term that refers to the psychological illness or disorder exhibited by an inmate who has spent a prolonged period of time in harsh conditions on death row. The article reviews the Polunsky Unit, which currently houses Texas’s death row and has been described as one of the worst prisons in the United States. The article also discusses the long history of Lackey claims, which allege that prolonged confinements under a death sentence breach the Eighth Amendment’s prohibition against cruel and unusual punishment. The unresolved dissent within the Supreme Court regarding this subject is presented and discussed. This article contends that the prolonged solitary confinement of a Texas inmate on death row is a violation of the Eighth Amendment, and concludes that the only solution is to end the practice of automatic and permanent solitary confinement.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90917962","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 : 2019-05-01DOI: 10.1525/NCLR.2019.22.2.223
Michael Conklin
This is a critical review of the book, Deadly Justice: A Statistical Portrait of the Death Penalty. Parts of the book addressed are public opinion polling, racial disparities, and death-qualified juries. Numerous examples are provided for how the book, while informative, provides a deceptive view on the subject through the selective use of statistics and provided explanations.
{"title":"Painting a Deceptive Portrait","authors":"Michael Conklin","doi":"10.1525/NCLR.2019.22.2.223","DOIUrl":"https://doi.org/10.1525/NCLR.2019.22.2.223","url":null,"abstract":"This is a critical review of the book, Deadly Justice: A Statistical Portrait of the Death Penalty. Parts of the book addressed are public opinion polling, racial disparities, and death-qualified juries. Numerous examples are provided for how the book, while informative, provides a deceptive view on the subject through the selective use of statistics and provided explanations.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84406393","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 : 2019-05-01DOI: 10.1525/NCLR.2019.22.2.200
M. Mehta
The Supreme Court of India in Bachan Singh v. State of Punjab, listed “future dangerousness” of the accused as one of the factors the court must consider when awarding the death sentence. The burden of proof lies on the State to prove the same. This standard has been inconsistently applied in Indian capital sentencing jurisprudence. In Anil Anthony, the most recent decision on this issue, the Supreme Court held that determination of future dangerousness cannot be based on the facts of the case. However, in earlier decisions such as Gurdev Singh, the court concluded that the brutality of the crime ruled out the possibility of reform. This article argues, drawing on a comparative analysis with the United States, that though future dangerousness is an inevitable “fact in issue” for judges, the evidence that may be adduced does not meet the standards required for the imposition of the death penalty. Thus, future dangerousness as a determining factor during sentencing is a ground for challenging the constitutionality of the death penalty itself. In the interim, Anil Anthony is a better standard to apply, as compared to both Bachan Singh and Gurdev Singh, in principle as well as in practice.
{"title":"Is There Such a Thing as “Future Dangerousness”? Examining Capital Sentencing Jurisprudence in India After Anil Anthony","authors":"M. Mehta","doi":"10.1525/NCLR.2019.22.2.200","DOIUrl":"https://doi.org/10.1525/NCLR.2019.22.2.200","url":null,"abstract":"The Supreme Court of India in Bachan Singh v. State of Punjab, listed “future dangerousness” of the accused as one of the factors the court must consider when awarding the death sentence. The burden of proof lies on the State to prove the same. This standard has been inconsistently applied in Indian capital sentencing jurisprudence. In Anil Anthony, the most recent decision on this issue, the Supreme Court held that determination of future dangerousness cannot be based on the facts of the case. However, in earlier decisions such as Gurdev Singh, the court concluded that the brutality of the crime ruled out the possibility of reform.\u0000 This article argues, drawing on a comparative analysis with the United States, that though future dangerousness is an inevitable “fact in issue” for judges, the evidence that may be adduced does not meet the standards required for the imposition of the death penalty. Thus, future dangerousness as a determining factor during sentencing is a ground for challenging the constitutionality of the death penalty itself. In the interim, Anil Anthony is a better standard to apply, as compared to both Bachan Singh and Gurdev Singh, in principle as well as in practice.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82742523","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 : 2019-02-01DOI: 10.1525/NCLR.2019.22.1.73
Terry Skolnik
This article argues that we should rethink homeless people’s punishments for violating quality-of-life ordinances. Those ordinances prohibit acts that are deemed to constitute urban nuisances—urban camping, public urination, and sleeping on sidewalks among them. Violating quality-of-life ordinances can result in expensive fines, administrative fees, and civil consequences for unpaid fines. In line with other scholars’ work, this article demonstrates how our current punishment scheme entrenches individuals in homelessness and operates like a self-fulfilling prophecy. Lacking a private property right and stuck in a cycle of homelessness, homeless people will continue to alleviate their needs on public property and be subject to further coercion and punishment. Homeless people’s punishments for violating quality-of-life offenses are also objectionable because they violate three types of proportionality constraints: the gravity of the prohibited conduct, the homeless person’s moral blameworthiness, and their personal situation. This article proposes an alternate punishment scheme that minimizes the prospect of entrenchment in homelessness and remedies those three proportionality concerns. It argues that the state should adopt a day-fine model for financial penalties, implement criminal justice debt absolution frameworks, and rethink the civil and criminal consequences associated with unpaid fines. A more proportional punishment scheme is neither a solution to the reality of homelessness nor a substitute for the state’s responsibility to ensure better access to housing. However, this article’s proposals can mitigate the gravest consequences associated with homeless people’s punishments, prevent entrenchment in homelessness, and ensure homeless people are treated with greater respect.
{"title":"Rethinking Homeless People’s Punishments","authors":"Terry Skolnik","doi":"10.1525/NCLR.2019.22.1.73","DOIUrl":"https://doi.org/10.1525/NCLR.2019.22.1.73","url":null,"abstract":"This article argues that we should rethink homeless people’s punishments for violating quality-of-life ordinances. Those ordinances prohibit acts that are deemed to constitute urban nuisances—urban camping, public urination, and sleeping on sidewalks among them. Violating quality-of-life ordinances can result in expensive fines, administrative fees, and civil consequences for unpaid fines. In line with other scholars’ work, this article demonstrates how our current punishment scheme entrenches individuals in homelessness and operates like a self-fulfilling prophecy. Lacking a private property right and stuck in a cycle of homelessness, homeless people will continue to alleviate their needs on public property and be subject to further coercion and punishment. Homeless people’s punishments for violating quality-of-life offenses are also objectionable because they violate three types of proportionality constraints: the gravity of the prohibited conduct, the homeless person’s moral blameworthiness, and their personal situation.\u0000 This article proposes an alternate punishment scheme that minimizes the prospect of entrenchment in homelessness and remedies those three proportionality concerns. It argues that the state should adopt a day-fine model for financial penalties, implement criminal justice debt absolution frameworks, and rethink the civil and criminal consequences associated with unpaid fines. A more proportional punishment scheme is neither a solution to the reality of homelessness nor a substitute for the state’s responsibility to ensure better access to housing. However, this article’s proposals can mitigate the gravest consequences associated with homeless people’s punishments, prevent entrenchment in homelessness, and ensure homeless people are treated with greater respect.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87456865","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 : 2019-02-01DOI: 10.1525/nclr.2019.22.1.34
Ivó Coca-Vila
Despite the great interest aroused among Anglo-American criminal law scholars by the justification of necessity, the conflict of duties as a separate defense sui generis has gone largely unnoticed until now. The aim of this paper is to fill the gap by providing a critical review of the concept and foundation for a conflict of duties as defense in the continental criminal law. Regarding the former, this legal institution is defined as a conflict between grounds of obligation that cannot be cumulatively fulfilled. Their deontic nature (prohibited or required) is thus irrelevant. With regard to the second issue, the argument is made that the solution of the collision involves a judgment set out to hierarchically arrange the colliding reasons from a formal point of view that is respectful with the principles of autonomy and solidarity. Therefore, the obligor must only fulfill the strongest ground of obligation—the only duty that can be legitimized in the particular situation—or, when before a conflict between equivalent grounds of obligation, they must comply with the disjunctive or alternative duty—aid one or the other—which the legal system imposes on them.
{"title":"Conflicting Duties in Criminal Law","authors":"Ivó Coca-Vila","doi":"10.1525/nclr.2019.22.1.34","DOIUrl":"https://doi.org/10.1525/nclr.2019.22.1.34","url":null,"abstract":"Despite the great interest aroused among Anglo-American criminal law scholars by the justification of necessity, the conflict of duties as a separate defense sui generis has gone largely unnoticed until now. The aim of this paper is to fill the gap by providing a critical review of the concept and foundation for a conflict of duties as defense in the continental criminal law. Regarding the former, this legal institution is defined as a conflict between grounds of obligation that cannot be cumulatively fulfilled. Their deontic nature (prohibited or required) is thus irrelevant. With regard to the second issue, the argument is made that the solution of the collision involves a judgment set out to hierarchically arrange the colliding reasons from a formal point of view that is respectful with the principles of autonomy and solidarity. Therefore, the obligor must only fulfill the strongest ground of obligation—the only duty that can be legitimized in the particular situation—or, when before a conflict between equivalent grounds of obligation, they must comply with the disjunctive or alternative duty—aid one or the other—which the legal system imposes on them.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82576576","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 : 2019-02-01DOI: 10.1525/NCLR.2019.22.1.3
Javier Wilenmann
Contemporary legal scholarship on criminalization focuses on evaluating the legitimacy of legislative decisions according to abstract standards of justice. In recent years, socio-legally oriented scholarship has attempted to do away with this focus by linking the theory of criminalization to the study of the real trends of criminal law enforcement. The article offers a critique of both approaches in what refers to the traditional area of application of the theory of criminalization, namely symbolic criminalization. It argues that whereas traditional papers discuss the legitimacy of the “enforcement of morality” through the criminal law, symbolic criminalization conflicts actually originate in disputes about meaning in plural societies. The real question that this phenomenon poses is thus not whether the enforcement of neutral morality is legitimate, but rather whether meaning framing through criminalization is.
{"title":"Framing Meaning through Criminalization","authors":"Javier Wilenmann","doi":"10.1525/NCLR.2019.22.1.3","DOIUrl":"https://doi.org/10.1525/NCLR.2019.22.1.3","url":null,"abstract":"Contemporary legal scholarship on criminalization focuses on evaluating the legitimacy of legislative decisions according to abstract standards of justice. In recent years, socio-legally oriented scholarship has attempted to do away with this focus by linking the theory of criminalization to the study of the real trends of criminal law enforcement. The article offers a critique of both approaches in what refers to the traditional area of application of the theory of criminalization, namely symbolic criminalization. It argues that whereas traditional papers discuss the legitimacy of the “enforcement of morality” through the criminal law, symbolic criminalization conflicts actually originate in disputes about meaning in plural societies. The real question that this phenomenon poses is thus not whether the enforcement of neutral morality is legitimate, but rather whether meaning framing through criminalization is.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90119548","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 : 2018-11-01DOI: 10.1525/NCLR.2018.21.4.514
Brian G. Sellers, B. Arrigo
This article empirically investigates how the humanistic critique at the core of virtue jurisprudence can illuminate the laws of captivity at the level of judicial decision making. One point of reference is the set of cases that makes up the constitutional challenges to and the resolutions of zero-tolerance public school discipline. These court decisions establish the conditions under which this strategy represents a legitimate and protected exercise of U.S. education policy and practice. We begin by explaining what virtue jurisprudence is, and we specify how its Aristotelian-sourced humanism has been the basis of ongoing sociolegal inquiry. We then delineate the coordinates of our methodology. These coordinates consist of two levels of textual data collection, as obtained from a LexisNexis criterion-based sample design. Next, we summarily present the results. These findings reveal both the judicial temperaments and the normative forces that inform and influence the nature of sociolegal decision making on the matter of zero-tolerance public school discipline. We discuss and analyze the results within the critical humanism of virtue jurisprudence. This critique suggests how the courts’ endorsement of zero-tolerance public policy and practice might be reconceived if an ethic of citizenship grounded the courts’ reasoning and decision making.
{"title":"Virtue Jurisprudence and the Case of Zero-Tolerance Discipline in U.S. Public Education Policy: An Ethical and Humanistic Critique of Captivity’s Laws","authors":"Brian G. Sellers, B. Arrigo","doi":"10.1525/NCLR.2018.21.4.514","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.4.514","url":null,"abstract":"This article empirically investigates how the humanistic critique at the core of virtue jurisprudence can illuminate the laws of captivity at the level of judicial decision making. One point of reference is the set of cases that makes up the constitutional challenges to and the resolutions of zero-tolerance public school discipline. These court decisions establish the conditions under which this strategy represents a legitimate and protected exercise of U.S. education policy and practice. We begin by explaining what virtue jurisprudence is, and we specify how its Aristotelian-sourced humanism has been the basis of ongoing sociolegal inquiry. We then delineate the coordinates of our methodology. These coordinates consist of two levels of textual data collection, as obtained from a LexisNexis criterion-based sample design. Next, we summarily present the results. These findings reveal both the judicial temperaments and the normative forces that inform and influence the nature of sociolegal decision making on the matter of zero-tolerance public school discipline. We discuss and analyze the results within the critical humanism of virtue jurisprudence. This critique suggests how the courts’ endorsement of zero-tolerance public policy and practice might be reconceived if an ethic of citizenship grounded the courts’ reasoning and decision making.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78621464","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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