Pub Date : 2018-11-01DOI: 10.1525/NCLR.2018.21.4.640
K. Montford, D. Moore
Critical scholarship on the carceral reifies two main pillars of critical thought—phenomenology and governmentality. In this study of shifting carceral logics and experiences concerning Indigenous peoples in Canada, we borrow from these traditions and also challenge their centrality in prison studies. We argue that the prison is the new reserve, and use that argument as a vehicle to illustrate the influence of less recognized forms of thought within critical prison studies—especially post-colonial and Indigenous scholarship. It is through these varied lenses that we show the paradox of Indigenizing punishment that at once disavows the further incarceration of Indigenous peoples and sets out deliberate strategies to Indigenize the carceral.
{"title":"The Prison as Reserve: Governmentality, Phenomenology, and Indigenizing the Prison (Studies)","authors":"K. Montford, D. Moore","doi":"10.1525/NCLR.2018.21.4.640","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.4.640","url":null,"abstract":"Critical scholarship on the carceral reifies two main pillars of critical thought—phenomenology and governmentality. In this study of shifting carceral logics and experiences concerning Indigenous peoples in Canada, we borrow from these traditions and also challenge their centrality in prison studies. We argue that the prison is the new reserve, and use that argument as a vehicle to illustrate the influence of less recognized forms of thought within critical prison studies—especially post-colonial and Indigenous scholarship. It is through these varied lenses that we show the paradox of Indigenizing punishment that at once disavows the further incarceration of Indigenous peoples and sets out deliberate strategies to Indigenize the carceral.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"10 1","pages":"640-663"},"PeriodicalIF":0.4,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77839285","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.2018.21.4.483
B. Arrigo, D. Polizzi
{"title":"Introduction to the Special Issue: On the Laws of Captivity","authors":"B. Arrigo, D. Polizzi","doi":"10.1525/NCLR.2018.21.4.483","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.4.483","url":null,"abstract":"","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"11 1","pages":"483-491"},"PeriodicalIF":0.4,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75294845","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.2018.21.4.492
G. Pavlich
The 19th century proved to be an important moment for a discursive capture through which—as Foucault (1995) has famously described—diverse disciplinary powers expanded omnisciently to form modern, “carceral” societies. Included here was a regulatory focus on crime, capturing (identifying) criminals, and correcting them. The following paper examines specifically how Patrick Colquhoun approached such regulation by emphasizing “immoral habits” as a cause of crime that could be regulated, in concert, by civil society and criminal law. He called for the development of effective discipline-based policing to capture and control criminals in civil society, and to enable their subsequent arrogation by criminal law. Alongside Bentham’s panoptic surveillance, Colquhoun’s views on criminal habits called for expanding disciplined criminalization that tied social and legal governance. Two aspects of Colquhoun’s influential ideas are highlighted; namely, the social formation of immoral habits as the cause of crime, and the need for “energetic” systems of policing to embrace habits of criminalization. Together, these approaches to habit fostered massive, costly, and unequal criminal justice institutions that today form tenacious, marginalizing, and unequal relations of captivity. The scope of such enduring captivities might be curtailed by recalling their contingent emergence through historically distant trends, and by questioning their costly collective effects.
{"title":"Captive Habits of Criminalization","authors":"G. Pavlich","doi":"10.1525/NCLR.2018.21.4.492","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.4.492","url":null,"abstract":"The 19th century proved to be an important moment for a discursive capture through which—as Foucault (1995) has famously described—diverse disciplinary powers expanded omnisciently to form modern, “carceral” societies. Included here was a regulatory focus on crime, capturing (identifying) criminals, and correcting them. The following paper examines specifically how Patrick Colquhoun approached such regulation by emphasizing “immoral habits” as a cause of crime that could be regulated, in concert, by civil society and criminal law. He called for the development of effective discipline-based policing to capture and control criminals in civil society, and to enable their subsequent arrogation by criminal law. Alongside Bentham’s panoptic surveillance, Colquhoun’s views on criminal habits called for expanding disciplined criminalization that tied social and legal governance. Two aspects of Colquhoun’s influential ideas are highlighted; namely, the social formation of immoral habits as the cause of crime, and the need for “energetic” systems of policing to embrace habits of criminalization. Together, these approaches to habit fostered massive, costly, and unequal criminal justice institutions that today form tenacious, marginalizing, and unequal relations of captivity. The scope of such enduring captivities might be curtailed by recalling their contingent emergence through historically distant trends, and by questioning their costly collective effects.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"404 1","pages":"492-513"},"PeriodicalIF":0.4,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76806599","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.2018.21.4.592
R. Lippens
The psychoanalytic interpretation of Salafi jihadism and terrorism, or the application of psychoanalytic categories to said issues, are not very common. Indeed the mobilization of psychoanalysis in this context very often prompts accusations of orientalism and cultural imperialism. Both academic discourse and, to a lesser extent, policy, tend to “explain,” whether genuinely, strategically or tactically, or diplomatically, the emergence of “home-grown” Salafism by pointing to social, welfare, or educational deficits in the jihadists’ biographies. In this article we make an attempt to focus on psychoanalysis (or “depth psychology,” as it was sometimes called in a now-bygone age) to shed light on the phenomenon. Taking cues from Jan Hendrik van den Berg’s neo-Freudian and phenomenology-inspired critique of classical psychoanalysis on the one hand, and Peter Sloterdijk’s recent work on bastardy on the other, we offer a reading of European home-grown Salafi jihadist and terrorist inclination as reactions to failure, and as manifestations of a deep sense of inadequacy, in some of those who are unable to live up to what has become the predominant, imperative code in the cultural mainstream: to live one’s life in radical, complete, and total sovereignty, undetermined and in absolute omnipotence. This code, and the exigencies it imposes, we suggest, have become mainstream in the age which we have called Luciferian.
对萨拉菲圣战主义和恐怖主义的精神分析解释，或者将精神分析分类应用于上述问题，并不常见。事实上，在这种背景下，精神分析的动员经常引发对东方主义和文化帝国主义的指责。无论是学术论述，还是在较小程度上的政策，都倾向于通过指出圣战分子履历中的社会、福利或教育缺陷，真诚地、战略性地、战术地或外交地“解释”“本土”萨拉菲主义的出现。在本文中，我们试图关注精神分析(或“深度心理学”，因为它在现在的时代有时被称为)来阐明这种现象。以简•van den Berg的新弗洛伊德和phenomenology-inspired古典精神分析批评一方面,和彼得Sloterdijk最近的工作庶出,我们提供一个阅读欧洲本土的沙拉菲圣战和恐怖倾向对失败的反应,和作为一个深深的不足的表现,一些人无法履行已成为主要的,必要的代码在文化主流:独立自主:在根本的、完全的和完全的主权中生活，不确定的和绝对的无所不能我们认为，这个准则，以及它所强加的紧急情况，已经成为我们称之为路西法时代的主流。
{"title":"Depth in 21st-Century Cells? European Salafi Jihadi Terrorism and Psychoanalysis in the Luciferian Age","authors":"R. Lippens","doi":"10.1525/NCLR.2018.21.4.592","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.4.592","url":null,"abstract":"The psychoanalytic interpretation of Salafi jihadism and terrorism, or the application of psychoanalytic categories to said issues, are not very common. Indeed the mobilization of psychoanalysis in this context very often prompts accusations of orientalism and cultural imperialism. Both academic discourse and, to a lesser extent, policy, tend to “explain,” whether genuinely, strategically or tactically, or diplomatically, the emergence of “home-grown” Salafism by pointing to social, welfare, or educational deficits in the jihadists’ biographies. In this article we make an attempt to focus on psychoanalysis (or “depth psychology,” as it was sometimes called in a now-bygone age) to shed light on the phenomenon. Taking cues from Jan Hendrik van den Berg’s neo-Freudian and phenomenology-inspired critique of classical psychoanalysis on the one hand, and Peter Sloterdijk’s recent work on bastardy on the other, we offer a reading of European home-grown Salafi jihadist and terrorist inclination as reactions to failure, and as manifestations of a deep sense of inadequacy, in some of those who are unable to live up to what has become the predominant, imperative code in the cultural mainstream: to live one’s life in radical, complete, and total sovereignty, undetermined and in absolute omnipotence. This code, and the exigencies it imposes, we suggest, have become mainstream in the age which we have called Luciferian.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"47 1","pages":"592-614"},"PeriodicalIF":0.4,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82277099","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 : 2018-08-01DOI: 10.1525/NCLR.2018.21.3.426
Wayne A. Logan
Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-a-vis current and future potential registrants.
{"title":"Challenging the Punitiveness of “New-Generation” Sorn Laws","authors":"Wayne A. Logan","doi":"10.1525/NCLR.2018.21.3.426","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.3.426","url":null,"abstract":"Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-a-vis current and future potential registrants.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"8 1","pages":"426-457"},"PeriodicalIF":0.4,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73216408","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 : 2018-08-01DOI: 10.1525/NCLR.2018.21.3.321
Carissa Byrne Hessick
This Symposium essay identifies two dramatic expansions of child pornography law: prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images. These prosecutions have expanded the definition of the term “child pornography” well beyond its initial meaning. What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of the conclusion that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.
{"title":"The Expansion of Child Pornography Law","authors":"Carissa Byrne Hessick","doi":"10.1525/NCLR.2018.21.3.321","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.3.321","url":null,"abstract":"This Symposium essay identifies two dramatic expansions of child pornography law: prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images. These prosecutions have expanded the definition of the term “child pornography” well beyond its initial meaning. What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of the conclusion that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"27 1","pages":"321-344"},"PeriodicalIF":0.4,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85692976","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 : 2018-08-01DOI: 10.1525/NCLR.2018.21.3.458
Corey Rayburn Yung
The American criminal justice system regarding sex is not just logically incoherent, it is also often morally bankrupt because it remains unexamined and poorly understood. This Article contends that there are actually common roots underlying the seemingly oppositional forces of social panic and denial, which explain why the United States has an endemic sexual violence problem. Both panic and denial reinforce the implicit, and sometimes explicit, desire to avoid substantive engagement with socially contentious issues related to sex. The use of residency restrictions and civil commitment fit the modern social goal of putting sex offenders out-of-sight and out-of-mind. Yet, those same desires also explain America’s unwillingness to believe victims of sexual violence and police failure to properly investigate criminal complaints. In this way, sex panic dovetails with sex denial—in both instances, American culture only permits a limited discussion and understanding of sex and sexual violence. The result is that our nation fails to take sex crime complaints seriously while overreacting to the few convictions that emerge from the hostile criminal justice system.
{"title":"Sex Panic and Denial","authors":"Corey Rayburn Yung","doi":"10.1525/NCLR.2018.21.3.458","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.3.458","url":null,"abstract":"The American criminal justice system regarding sex is not just logically incoherent, it is also often morally bankrupt because it remains unexamined and poorly understood. This Article contends that there are actually common roots underlying the seemingly oppositional forces of social panic and denial, which explain why the United States has an endemic sexual violence problem. Both panic and denial reinforce the implicit, and sometimes explicit, desire to avoid substantive engagement with socially contentious issues related to sex. The use of residency restrictions and civil commitment fit the modern social goal of putting sex offenders out-of-sight and out-of-mind. Yet, those same desires also explain America’s unwillingness to believe victims of sexual violence and police failure to properly investigate criminal complaints. In this way, sex panic dovetails with sex denial—in both instances, American culture only permits a limited discussion and understanding of sex and sexual violence. The result is that our nation fails to take sex crime complaints seriously while overreacting to the few convictions that emerge from the hostile criminal justice system.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"37 1","pages":"458-482"},"PeriodicalIF":0.4,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85153959","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 : 2018-08-01DOI: 10.1525/NCLR.2018.21.3.379
Ben A. McJunkin, J. Prescott
More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character—and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance. Grady left open the question whether the search—and the state’s technological monitoring program more generally—was constitutionally reasonable. This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.
美国40多个州目前使用GPS设备追踪至少部分被定罪的性犯罪者。许多违规者将被终身监禁。长期生活在持续不断的技术监控下的负担和费用已经得到了充分的证明，但大多数评论家认为这些负担不属于宪法范畴，因为各州将这种监控定性为“民事”性质——法院似乎也同意这一点。然而，2015年，最高法院在格雷迪诉北卡罗来纳州案(Grady v. North Carolina)中裁定，在个人身上安装GPS监控设备属于第四修正案规定的搜查，尽管这种监视表面上具有民事性质。格雷迪留下了一个问题，即搜查——以及更广泛的国家技术监控项目——在宪法上是否合理。本文考虑了第四修正案的合理性原则和理论，因为它适用于当前和设想的性犯罪者监测技术，以评估第四修正案是否可以作为释放后监测制度的有效检查。
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Pub Date : 2018-05-01DOI: 10.1525/NCLR.2018.21.2.212
Morris B Hoffman
A sitting trial judge, and member of the MacArthur Foundation’s Research Network on Law and Neuroscience, makes short-term, long-term and “never happening” predictions about the impacts neuroscience will have on law.
麦克阿瑟基金会(MacArthur Foundation)法律与神经科学研究网络(Research Network on Law and Neuroscience)成员、现任审判法官，对神经科学将对法律产生的影响做出短期、长期和“永远不会发生”的预测。
{"title":"Nine Neurolaw Predictions","authors":"Morris B Hoffman","doi":"10.1525/NCLR.2018.21.2.212","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.2.212","url":null,"abstract":"A sitting trial judge, and member of the MacArthur Foundation’s Research Network on Law and Neuroscience, makes short-term, long-term and “never happening” predictions about the impacts neuroscience will have on law.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"26 1","pages":"212-246"},"PeriodicalIF":0.4,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80019479","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 : 2018-05-01DOI: 10.1525/NCLR.2018.21.2.247
Andrea D. Lyon
Although in recent years it has become a bit easier to discuss mental health challenges in public, mental illness is still somehow viewed by many in the public as a moral failing. It is that underlying judgement, that unwillingness to look at the many sources that leads to profound misunderstandings by the public, particularly in the context of a criminal trial. In this article I examine these issues in that context in order to better identify, and come to a better understanding of where our shared biases get in the way of a reasoned view of such evidence. The article examines some broad policy questions regarding what we, as a society, do with our mentally ill, and then looks at public perceptions and their impact on criminal justice decision making.
{"title":"The Blame Game: Public Antipathy to Mental Health Evidence in Criminal Trials","authors":"Andrea D. Lyon","doi":"10.1525/NCLR.2018.21.2.247","DOIUrl":"https://doi.org/10.1525/NCLR.2018.21.2.247","url":null,"abstract":"Although in recent years it has become a bit easier to discuss mental health challenges in public, mental illness is still somehow viewed by many in the public as a moral failing. It is that underlying judgement, that unwillingness to look at the many sources that leads to profound misunderstandings by the public, particularly in the context of a criminal trial. In this article I examine these issues in that context in order to better identify, and come to a better understanding of where our shared biases get in the way of a reasoned view of such evidence. The article examines some broad policy questions regarding what we, as a society, do with our mentally ill, and then looks at public perceptions and their impact on criminal justice decision making.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"37 1","pages":"247-266"},"PeriodicalIF":0.4,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78075324","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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