American politics,British policy: whole of life imprisonment and transatlantic influence

Since the abolition of the death penalty, life imprisonment in England and Wales has had a literal meaning with exceptional rarity. Now though, in the rejection of perceived interference by the European Court of Human Rights in domestic sentencing, the politics of whole of life imprisonment have become exposed, specifically, in the widening applicability of the tariff to those who kill police officers or prison guards. Borrowing from the politics of capital punishment in the United States, in both “acting out” after a particular crime, and the prioritising of victim groups, the most severe penalty in England and Wales is increasingly beginning to mirror how the most severe punishment across the Atlantic is used, represented, and politicised.     

WWWMDs: Cyber-attacks against infrastructure in domestic anti-terror laws

This article compares and contrasts the legislation that would be used to prosecute acts of cyber-terrorism in five western democracies: Australia, the United Kingdom, Canada, New Zealand and the United States. It argues that each of the four Commonwealth jurisdictions sets too low a threshold for prosecuting acts of cyber-terrorism against electronic and other infrastructure systems. By contrast, the United States has enacted more finely calibrated legislation that sets a much higher threshold for acts of cyber-terrorism deserving life imprisonment.     

Why hasn't integrated health care developed widely in the United States and not at all in England?

There have been influential advocates for financing and organizing health care in the United States and England based on the model of integrated health care delivery systems (IHCDSs). Despite good evidence that a few IHCDSs provide high-quality health care economically, such organizations are rare and localized in a few market areas in the United States and are absent in the English National Health Service (NHS). The explanation of why this is so includes various contributory factors: the way the development of the medical profession in each country pursued specialization; the division in British medicine between general practitioners and specialists; and the characteristics that we identify of established successful IHCDSs, which created formidable barriers to entry for a new IHCDS. This explains why currently the most promising organizational developments in U.S. health care are hybrids resulting from vertical integration. In England government policies of an "internal market," as adopted in the 1990s and currently, were and are based on a purchaser-provider split with the objectives that providers would compete and be funded by a system in which "money follows the patient." These policies recognize the division in British medicine, which also means that it is difficult to implement a reorganized English NHS based on high-performing IHCDSs.     

Economy,punishment and imprisonment

Recent trends in sentencing in England and Wales are discussed and related to the debate concerning the relationship between unemployment and imprisonment. The shift towards a more punitive justice system are traced to the abandonment of full employment economic policies in the mid 1970s.     

Human-nonhuman chimeras: a regulatory proposal on the blurring of species lines

The chimera of modern biotechnology is defined broadly as a single organism composed of a mixture of materials from two or more organisms possessing distinct genetic backgrounds. Unlike the United States, which does not regulate chimeras directly, Canada has responded to the unregulated pursuit of chimera technology by banning certain chimeras as part of comprehensive legislation designed to regulate human reproductive technologies. In 2004, the Canadian Parliament passed the Assisted Human Reproduction Act despite criticism urging greater legislative justification for the Act's provisions and modification to it statutory definitions. Because current regulatory mechanisms in the United States, including patent law and administrative oversight, fail to regulate chimera technology, the United States should enact new legislation, using Canada's legislation as a model, to prohibit embryonic chimeras and to regulate other human-nonhuman combinations. Unregulated biotechnology threatens to disrupt legal and social institutions; therefore, the United States must make a balanced effort now to protect the public interest.     

Forensic Facial Comparison: Issues of Admissibility in the Development of Novel Analytical Technique

Much contemporary debate in forensic science concerns validity and admissibility of scientific evidence in court. In this paper, three current approaches to facial identification—image superimposition, photogrammetry, and morphological analysis—are considered with regard to criteria for scientific evidence in the United States, and England, and Wales. The aim of the paper is to assess the extent to which facial image comparison meets criteria of admissibility in these jurisdictions. The method used is a comparative evaluation of the methods of facial image comparison and their underlying premises against the range of admissibility criteria reported in court rulings and relevant judicial and scientific inquiries in the United States and the United Kingdom. While the techniques of facial image comparison are generally accepted within their practitioner communities, they are not tested, and their error rates are unknown. On that basis, the methods of facial image comparison would appear not to meet the anticipated standards. They are, nevertheless, admitted in court in the United States, and England, and Wales. This paper concludes that further research in science and law will be necessary to more definitively establish admissibility of facial image comparison evidence, as it will for other nascent and novel methods that are potentially influential in court proceedings.     

The Impact of Imprisonment on Marriage and Divorce: A Risk Set Matching Approach

Marriage has a prominent place in criminological theory and research as one institution that has the potential to genuinely foster desistance from a criminal career. Mass imprisonment policies in the United States and elsewhere, therefore, pose a potential threat of increased crime if they impede the ability of ex-prisoners to reintegrate into society by stigmatizing them and limiting their chances in the marriage market. We use a long-term study of a conviction cohort in The Netherlands to ascertain the effect that first-time imprisonment has on the likelihood of marriage and divorce. The results suggest that the effect of imprisonment on the likelihood of marriage (among unmarried offenders) is largely a selection artifact, although there is very weak evidence for a short-lived impact that does not persist past the first year post-release. This is interpreted as a residual incapacitation effect. On the other hand, the results strongly suggest that the experience of incarceration leads to a substantially higher divorce risk among offenders who are married when they enter prison.     

Structuration Theory and Wrongful Imprisonment: From ‘Victimhood’ to ‘Survivorship’?

Building on existing research from a zemiological approach, this article seeks to contribute to a more ontological understanding of the production and reproduction of harms associated with wrongful imprisonment in England and Wales. Drawing from Anthony Giddens’s theory of structuration, it is argued that whilst the harms of wrongful imprisonment are both complex and devastating, victims need not be perceived as entirely passive. Rather, victims of wrongful imprisonment can be viewed as knowledgeable agents with the intrinsic capacity and agency to strategically cope with and even survive the harms that they experience. The article concludes with personal accounts by victims of wrongful imprisonment that form an identifiable ‘survivor’ discourse to highlight some of the key critical factors that are vital in helping victims of wrongful imprisonment to re-structure their lives after release.     

Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission

The Criminal Cases Review Commission (CCRC) was the first publiclyfunded body created to investigate claims of wrongful conviction,with the power to refer cases to the Court of Appeal. In othercountries, such as Australia, Canada and the United States,many regard the CCRC as the optimal solution to wrongful convictionand, for years, Innocence Projects in these countries have calledfor the establishment of a CCRC-style body in their own jurisdictions.However, it is now Innocence Projects which are being introducedin England and Wales to try to assist applicants who are innocentbut convicted. This article reviews why the CCRC was created,discusses the role of factual innocence within this body andwithin the criminal justice system generally and explores whyInnocence Projects are being created in England and Wales, despitethe presence of the CCRC. It explains how these different organizationsmay work together to assist factually innocent people who havebeen wrongly convicted, and the role Innocence Projects mayplay generally in criminal justice reform and legal education.     

A Brief History of Doing Time: The California Institution for Women in the 1960s and the 1990s

Recent scholarship on penality describes profound changes in the ideology, discourses, and policies shaping criminal punishment in the late-twentieth-century United States. To assess the implications of these changes for those subject to criminal punishment, we examine the experiences of women in prison at two key points in the recent history of penality. We compare how imprisonment was practiced and responded to at the California Institution for Women in the early 1960s, when the rehabilitative model dominated official penal discourse, and in the mid-1990s, near the height of the "get tough" era. We find that the ways in which women related and responded to other prisoners, to staff, and to the prison regime, while in some ways specific to one or the other penal era, did not fundamentally change. Thus, penal regimes ostensibly informed by profoundly different rationalities nevertheless structured the daily lives of prisoners through a very similar set of deprivations, restrictions, and assumptions.     

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

Canada ordered to implement WTO ruling against "stockpiling" of generic drugs

In the last issue, we reported on a mixed World Trade Organization (WTO) ruling regarding Canada's patent laws, based on a complaint by the member states of the European Communities (joined by the United States). In March 2000, a WTO Panel accepted the provision in Canada's Patent Act that creates an "early working exception" to patent rights--in other words, that allows a third party to use a patented invention during the term of patent protection, as long as the use is for obtaining regulatory approval of an equivalent product to be sold once the patent expires. This was an important victory from the perspective of allowing earlier access to generic versions of patented drugs.     

Another special relationship? Interactions between health technology policies and health care systems in the United States and the United Kingdom

Confronted with similar challenges, the United States and the United Kingdom have adopted very different health technology policies. In the United States, the focus has been on technology creation, in particular the funding of basic biomedical research at the National Institutes of Health. This both reflects and reinforces an innovation-first culture in the United States, including in health. By contrast, the United Kingdom has been much more heavily committed to applied research and evaluative research, including health-technology assessment. That is, while U.S. policy has focused on technology creation, U.K. policy has been more oriented toward technology diffusion. This article surveys the sources of these differences. We consider the impacts of institutional, cultural, and other factors that may explain them, and emphasize that it is hard to disentangle the separate effects of those factors. We conclude with a discussion of the difficulties in drawing cross-national lessons in health technology policy.     

THE FAILURE OF COMPETITIVE ENTRY INTO FIXED-LINE TELECOMMUNICATIONS: WHO IS AT FAULT?

Between 1998 and 2003, dozens of companies entered newly liberalizedtelecommunications markets in OECD countries. In Europe andNorth America, most of the entrants that attempted to use incumbents'"unbundled local loops," at regulated wholesale prices, to offernarrowband services—essentially "plain old telephone service"—havefailed. Even though Europe, the United States and Canada liberalizedat different times and with somewhat different policies, excessiveentry occurred in each region with too many players chasingan illusive pot of revenue with poorly designed business plans.On the other hand, the use of unbundled or shared local loopsfor entry into broadband services may be more of a winning strategybecause it allows the entrant to compete for customers by offeringnew services. This appears to be the emerging broadband strategyin Europe of large ISPs owned by incumbent telecommunicationcompanies in other countries (for example, France Telecom'sWanadoo) and in Japan. However, such entry has not worked inthe United States, where new companies, such as Covad, havefailed to develop profitable operations.     

美国监狱管理的紧束化倾向研究

美国是世界上监禁率最高的国家,监禁刑是其比较有代表性的刑罚。美国监狱变革从殖民地时期一直延续至今,与其经济、文化和刑罚理念变化紧密相连,体现了多元化的特征。在勇于创新、接受挑战的思潮影响下,美国监狱部门不断进行变革并发展,完善其监狱法制和管理制度,提高管理和矫正水平,采取新的措施来适应社会对犯罪矫正的新要求,并在新近出现了紧束化倾向。因此,从关注美国的监狱变革角度探讨美国矫正处遇的变革,极具实证价值和社会意义。     

Research ethics across the 49th parallel: the potential value of pilot testing "equivalent protections" in Canadian research institutions

Canada and the United States share the world's largest trade partnership and an increasing concern about divergent regulatory approaches to common industries. Canadian research institutes receive more research funding from the U.S. National Institutes of Health than any other country, much of it to fund multi-centre and collaborative research between the two countries. Because of these close economic and research ties, and the extensive similarities between the two countries in the review and oversight of ethics in human subjects research, we propose that Canada would be an ideal country for a pilot-test of the feasibility of "equivalent protections," a U.S. regulation that permits comparison of protections for human subjects between institutions in the two countries. The "equivalent protections" has been advocated by various bodies in the United States as a potentially beneficial mechanism for improving oversight of foreign trials. As well, we argue that "equivalent protections" could prove to be valuable for Canada in five specific ways: (1) by potentially reducing administrative burden on Canadian research institutions administering U.S. federal research funding; (2) by creating symbolic value of an explicit recognition by the United States that procedures normally followed for the protection of human subjects in Canadian research institutions are at least equivalent to those provided by the U.S. regulations; (3) by lowering the opportunity cost of investing in research in Canada; (4) by affording Canada an opportunity to enhance its leadership role in international research by offering an alternative to the U.S. regulatory model for the protection of human subjects; and (5) by providing a model for how the idea of equivalent protections might be addressed for research funded by Canadian agencies but conducted in other countries.     

Theorizing Race and Imprisonment: Towards a New Penality

This article compares historical and contemporary notions of race in France, England and Wales, and the United States, in order to explain each nation's prison population. It seeks to demonstrate how the distinct interpretations and ways of documenting race in each place correspond with an over-representation of specific populations in that nation's prison system. After describing the prison population in each country, the paper analyzes the historical and cultural construction of ideas of race in France. Of particular importance is the Enlightenment and the 19th century love of taxonomy that articulated, mapped and reified Otherness and which is also considered to be the birth of prison and criminology. Thus, the genealogical approach may provide a new understanding of the conceptual and practical interdependence of race and imprisonment, which is then applied to the U.S. and England. This paper aims to help criminologists move beyond merely documenting the over-representation of minorities to critiquing the structures of race and punishment, grounded in colonialism and slavery, that serve to legitimate strategies of social control. This revised version was published online in July 2006 with corrections to the Cover Date.     

The severity of intermediate penal sanctions: A psychophysical scaling approach for obtaining community perceptions

The use of intensive supervision programs (ISPs) and other forms of intermediate penal sanctions is increasing in the United States. This paper describes a preliminary investigation of the extent to which informed New Jersey residents believe that intermediate sanctions that are currently being implemented in their state are severe. Using cross-modality matching of magnitude estimation techniques adopted from psychophysics, we obtained severity ratings of 32 sentences across six sentencing modalities (ISPs, probation, imprisonment, home detention, weekend sentencing, and fines) from respondents who had been briefed beforehand about what these sentences entail. Results indicate that our respondents agree that ISPs, weekend sentencing, and home detention have retributive bite and may be accepted as sentences in their own right. Probation was seen as being relatively lenient, while imprisonment was seen as highly severe.     

Social Justice and Religion in Prison: The Case of England and Wales

The policy of the Federal Bureau of Prisons in the United States is to show equal respect for all religious faiths, but the Prison Service Chaplaincy of England and Wales employs only Christian chaplains and is effectively controlled by the established Church of England. Recent empirical research shows that prisoners who belong to minority faith communities and new religious movements in England and Wales do not enjoy equality of opportunity to practice their religion. For example, their religious and spiritual needs are met by volunteer Visiting Ministers, who in turn must rely on full-time Christian chaplains to facilitate their access to prisoners, meeting rooms, and religious artifacts. This dependency gives rise to feelings of resentment, unjust discrimination, and marginalization among members of minority faith communities.     

‘Blue walls,’ ‘grey areas’ and ‘cleanups’: Issues in the control of police corruption in England and Wales

This paper examines issues concerned with police corruption and its control in England and Wales. The topic of defining police corruption is addressed, some current areas of risk are described and anti-corruption strategies, particularly those pursued by the London Metropolitan Police Service (MPS), are examined. What appears qualitatively and quantitatively different in the approach of services such as the MPS and Merseyside Police is the use of an adequately resourced, dedicated anti-corruption unit. This strategy has been buttressed by preventative measures involving management/administration and ethics/training. Dedicated units have been controversial, and preventative measures raise questions concerning evaluation. Nevertheless the approach to corruption bears comparison with that adopted by other major police services in other jurisdictions and represents a break with previous and unsuccessful efforts at corruption control in major police forces in England and Wales.