What's “New” About the Balanced Approach?

Over the past decade, many juvenile justice professionals became familiar with the “Balanced Approach as a new mission for juvenile probation. In recent months, a number of jurisdictions have adopted the Balanced Approach, by statute or policy, as the mission for their juvenile courts and juvenile justice systems. However, a great deal of misunderstanding persists about the meaning and practical differences between the Balanced Approach and other intervention models. While both quality and consistency of implementation of “balanced” policy and practice vary widely, some juvenile justice managers are using this new mission as a tool or “roadmap” for comprehensive re-structuring of juvenile justice systems and agencies. This paper argues that when viewed as a guide to systemic, rather than programmatic, reform, the Balanced Approach can be clearly distinguished from both the traditional individual treatment and the new retributive/punitive juvenile justice missions. Six critical differences between the Balanced Approach and these missions are described.     

The Idea of “Free Public Reason”

Abstract. In this paper the nature and the role of Rawls's idea of a “free public reason” are examined with an emphasis on the divide between the private and the public spheres, a divide which is the hallmark of a liberal democracy. Criticisms from both the so-called Continental tradition and the Communitarian opponents to liberalism insist on the ineffectiveness of such a conception, on its inability to establish a political consensus on democracy. But it would be a mistake to see a contractarian theory of justice, such as Rawls's justice as fairness, as grounding the social contract in a public use of reason. Such a contract would indeed be susceptible to endless conflicts and renegotiations and would never achieve consensus. Therefore, a distinction must be made between the values of justice that are present in and through the “original” contractual position and the that regulate the public sphere and guarantee its stability.     

Criminal Justice Through “Colorblind” Lenses: A Call to Examine the Mutual Constitution of Race and Criminal Justice

A central paradox defines the scholarship of criminal justice and race: while racial disparities manifest throughout the criminal justice system, it is often portrayed as race‐neutral. We identify two central paradigm shifts: one in penology (that focuses on risk) and one in racial ideology (that focuses on colorblindness) that create a perfect storm; criminal justice apparatuses produce an illusion of racial neutrality while exacerbating racial disproportionality. We join an expanding list of scholars encouraging discourse that engages critical race theory on an empirical level and import this approach to the consideration of race within the criminal justice system. We identify issues with the conceptualization and operationalization of race as a variable within criminal justice research and recommend that scholars consider the mutual constitution of race and criminal justice. That is, scholarship must examine and empirically measure how race and criminal justice institutions actively form and inform each other.     

“It Depends on the Outcome”: Prisoners,Grievances, and Perceptions of Justice

Social scientists have long investigated the social, cultural, and psychological forces that shape perceptions of fairness. A vast literature on procedural justice advances a central finding: the process by which a dispute is played out is central to people's perceptions of fairness and their satisfaction with dispute outcomes. There is, however, one glaring gap in the literature. In this era of mass incarceration, studies of how the incarcerated weigh procedural justice versus substantive justice are rare. This article addresses this gap by drawing on unique quantitative and qualitative data, including face‐to‐face interviews with a random sample of men incarcerated in three California prisons and official data provided by the California Department of Corrections and Rehabilitation (CDCR). Our mixed‐methods analysis reveals that these prisoners privilege the actual outcomes of disputes as their barometer of justice. We argue that the dominance of substantive outcomes in these men's perceptions of fairness and in their dispute satisfaction is grounded in, among other things, the high stakes of the prison context, an argument that is confirmed by our data. These findings do not refute the importance of procedural justice, but show the power of institutional context to structure perceptions of and responses to fairness, one of the most fundamental principles of social life.     

The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.     

“We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia

This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.     

The Shifting Sands of Punishment in China in the Era of “Harmonious Society”

This article about the politics of punishment in China today follows some of the political machinations involved in the development of a new policy called “Balancing Leniency and Severity.” It treats this new policy as an exemplar of how politics works in the Hu Jintao era to change the way crimes are addressed in judicial decision making. This paper underscores the important ways in which political ideology informs criminal justice policy and practice in China. It examines a number of stages of development within the last decade during which Balancing Leniency and Severity has emerged as a foundational criminal justice policy.     

“Experts by Experience”: The Involvement of Service Users and Families in Designing and Implementing Innovations in Family Justice

Drawing on international research, policy, and practice, this article explores what is meant by service user involvement, how it has developed, and how it has been implemented across different areas of practice. Using examples from across the health and social care fields, it reflects on how the learning from other areas of practice in which service user involvement has been successful may be applied to the family justice field. The arguments presented highlight the value of taking a bottom‐up approach in designing and implementing innovations in family justice, which would embrace the views of family members, including children, as ‘service users.’ It is important, however, to balance both the challenges and the opportunities offered by involving those who are ‘experts by experience’ in the family justice processes, in order to lead to improved services and experiences.     

THE “TRUE” JUVENILE OFFENDER: AGE EFFECTS AND JUVENILE COURT SANCTIONING

Age is the only factor used to demarcate the boundary between juvenile and adult justice. However, little research has examined how age guides the juvenile court in determining which youth within the juvenile justice system merit particular dispositions, especially those that reflect the court's emphasis on rehabilitation. Drawing on scholarship on the court's origins, attribution theory, and cognitive heuristics, we hypothesize that the court focuses on youth in the middle of the range of the court's age of jurisdiction—characterized in this article as “true” juveniles—who may be viewed as meriting more specialized intervention. We use data from Florida for court referrals in 2008 (N = 71,388) to examine the decision to proceed formally or informally and, in turn, to examine formally processed youth dispositions (dismissal, diversion, probation, commitment, and transfer) and informally processed youth dispositions (dismissal, diversion, and probation). The analyses provide partial support for the hypothesis. The very young were more likely to be informally processed; however, among the informally processed youth, the youngest, not “true” juveniles, were most likely to be diverted or placed on probation. By contrast, among formally processed youth, “true” juveniles were most likely to receive traditional juvenile court responses, such as diversion or probation.     

Efficient,Fair, and Incomprehensible: How the State “Sells” Its Judiciary

Socio‐legal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply‐side,” perspective. Focusing on the state's efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state's services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades‐long effort to displace local justice systems.     

Vulnerability as a normative argument for accommodating “justice” within the AFSJ

Vulnerability is a concept that stems from ethics and legal theory. It has progressively gained momentum in international human rights law, in particular in the European contextof the European Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive “vulnerabilisation” of EU law. This article intends in the first place to outline such a problematic notion and then to highlight the normative effects of vulnerability. In particular, this article will put forward the argument that such notion could serve to revamp the profile of “justice” of the AFSJ, which has been neglected so far, calling for the development of a more sophisticated ethics of State duties.     

“Please Check the Appropriate Box”: Documents and the Governance of Domestic Violence

This analysis examines the effects of administrative templates on legal responses to domestic violence. The discussion focuses on a set of intake forms deployed by a team of grassroots workers who routinely attend Toronto's specialized domestic violence plea courts to enroll defendants into counseling programs. Although these documents are nothing more than mundane, administrative forms, they are crucial to generating the formations required to govern domestic violence through the criminal justice and community partnerships on which the plea courts rely. Along with redefining the responsibilities of the legal and grassroots actors involved in the court network, the documents also generate and formalize notions of wrongdoing that prove to be far more effective in resolving cases than traditional guilty pleas. This analysis illuminates how forms permit the retreat and reassertion of state sovereignty as required in legal regimes involving devolution. It also underscores the methodological importance of constitutive analyses of documents to illuminating machinations of penal power.     

Courting Compliance: Case Managers as “Double Agents” in the Mental Health Court

An ethnographic study of four Midwest mental health courts was focused on how case managers influence the judicial response to offender noncompliance. Mental health courts, which bear little resemblance to traditional work group models, are staffed by teams of legal and social service professionals working collaboratively toward reducing recidivism and community reintegration for high‐risk offenders. Few studies, however, have explored how treatment providers practice their trade in this new court organization. I investigate how case management professionals, working at the intersections of the social welfare and criminal justice systems, leverage courtroom decision making that results in greater leniency or enhanced punishment. The findings suggest that mental‐health‐court case managers act as boundary spanners in terms of their strategic use of resources to facilitate treatment goals. I conclude that case managers act as “double agents” challenging the state to advocate for clemency while enforcing client rules to uphold the integrity of the court.     

Foucault on “Avowal”: Theatres of Truth from Homer to Modern Psychology

FOUCAULT, MICHEL. 2014 . Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice . Ed. Fabienne Brion and Bernard Harcourt, trans. Stephen Sawyer. Chicago, IL: University of Chicago Press. Cloth $35.00, E‐book $7.00 to $30.00. The publication of a previously unknown set of lectures delivered by Foucault in 1981 at Louvain's criminology institute constitutes a major revelation for legal and criminological scholars (Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice, 2014). The lecture material includes an extended discussion of the techniques used by Oedipus to establish the truth of his familial crime, a reflection on the beginnings of the inquisitorial justice system (which Foucault here argues paved the way for the scientific revolution), and analyses of contemporary forensic confessions. Throughout these meticulously edited lectures, the scientific and philosophical “inquiries” that revolutionized modern European knowledges are shown to be rooted in embodied practices of confession and avowal that go back to ancient Greece.     

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.     

Becoming “Copwise”: Policing,Culture, and the Collateral Consequences of Street‐Level Criminalization

Over the last four decades, the United States has witnessed a historic expansion of its criminal justice system. This article examines how street‐level criminalization transforms the cultural contexts of poor urban communities. Drawing on five years of fieldwork in Los Angeles’ Skid Row–the site of one of the most aggressive zero‐tolerance policing campaigns to date–the study finds that residents develop and deploy a particular cultural frame–“cop wisdom”–by which they render seemingly‐random police activity more legible, predictable, and manipulable. Armed with this interpretive schema, “copwise” residents engage in new forms of self‐presentation in public, movement through the daily round, and informal social control in order to deflect police scrutiny and forestall street stops. While these techniques allow residents to reduce unwanted police contact, this often comes at the expense of individual and collective well‐being by precluding social interaction, exacerbating stigma, and contributing to animosity in public space.     

“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

Sociolegal research has shed considerable light on gender inequality in the civil justice system. Existing research, however, rarely looks beyond court proceedings to examine gender inequality stemming from the prior stages in civil litigation. This article fills the gap by addressing the question of whether and how the early moments in disputing produce inequality between women and men. Based on a mixed‐methods study of divorce litigation in China, I identify two critical moments in the early stages in disputing: the initiation stage and the suit‐filing stage. Findings from the two stages indicate that, early on in disputing, the legal profession routinely dismisses and violates women's rights in marriage and family. Moreover, due to the legal profession's failure to convert important rights on the books into formal claims, women's marital grievances and rights claims fall through cracks long before they can enter court proceedings. These findings suggest that gender inequality can result not only from judicial decision making, but also from dispute processing conducted prior to—and outside of—court proceedings.     

“She's Nobody's Child/the Law Can't Touch Her at All”: Seeking to Bring Dignity to Legal Proceedings Involving Juveniles

Inquiries into a range of issues involving juveniles in the psychiatric hospitalization and criminal trial process reveal that, regularly, juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest, trial, conviction, and institutionalization, shame and humiliation that are often exacerbated in cases involving racial minorities and those who are economically impoverished. We contextualize them into the juvenile justice system, and look specifically at how this is reflected in the case law. We then consider these findings through the filters of therapeutic jurisprudence and international human rights laws, concluding that these approaches best remediate the current state of affairs and infuse this system with badly‐needed dignity.