The Intensification and Bifurcation of Surveillance in British Criminal Justice Policy

This paper explores the relevance and applicability of recent theoretical developments in surveillance studies in the context of contemporary British criminal justice policy. It will be argued that surveillance now occupies a privileged position in official policy. In a raft of new policy initiatives undertaken either as part the general project to modernise the criminal justice system or in response to particular crises, the surveillant solution occupies the central stage. Thus, whether it be in response to anxieties over sex offenders, failures of social services in protecting children at risk, or the management of the prison population, for example, the policy response has been to increase the surveillance capacity of the state. In particular, in line with the new penology thesis we are witnessing an expansion of the generalised surveillance capacity, in relation to all citizens, which may be characterised as passive and reactive. Simultaneously, vestiges of the old criminology remain as an officially designated ‘hard core’ of persistent or problematic offenders subject to the full panoply of surveillance techniques, which are proactive, extensive and intrusive. Thus, we are witnessing both an intensification and a bifurcation of surveillance practice. This paper was prepared for the European Journal on Criminal Policy and Research special edition on Fear vs. Freedom post 9/11-The European Perspective.     

Schrems II,from Snowden to China: Toward a new alignment on transatlantic data protection

When the Court of Justice announced the judgment in Schrems I, commentators described the outcome as an "earthquake" that tossed aside the fragile legal framework for transatlantic data flows known as the “Safe Harbor”. The judgment of the Court in Schrems II has now toppled the second framework, the “Privacy Shield”. In this article, I restate recommendations to the US Congress following the first Schrems judgment: (1) enact a comprehensive privacy law, (2) establish an independent data protection agency, and (3) ratify Council of Europe Convention 108. But I also explain that the United States and Europe are more aligned today in the common enterprise of data protection than they were five years ago, as the backdrop has shifted from the disclosures of Edward Snowden to the surveillance ambitions of the Chinese government. A common approach is therefore in the interests of these two key trading partners. There is also today shared urgency in strengthening the foundations of democratic institutions.     

Regulatory and Administrative Agency Behavior: Accommodation,Amplification, and Assimilation*

Much scholarly analysis of regulatory and administrative behavior focuses on officials' reactions to external influences. Commonly discussed is officials' accommodation of external interests or pressures (such as those of interest groups). But case studies show two additional types of behavior: amplification, in which officials enlarge the effects of external influences by anticipating the potential likely consequences of certain kinds of agency actions based upon their understandings of how situations have been responded to or may be responded to by others in the future; and assimilation, where officials define a situation as problematic and coordinate with or take into account various elements of their environment in attending to the perceived problem. Focusing on all three patterns of behavior and the context within which they emerge yields a fuller analysis of the significance of external factors for the exercise of discretion.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Contextualism in the Study of Indian Intellectual Cultures

When J. L. Austin introduced two “shining new tools to crack the crib of reality”—the theory of performative utterances and the doctrine of infelicities—he could not have imagined that he was also about to inaugurate a shining new industry in the philosophy of the social sciences. But with its evident concern for the features to which “all acts are heir which have the general character of ritual or ceremonial,” Austin’s theory soon became indispensable in the analysis of ritual, linguistic and every kind of social action. While Indianists such as Frits Staal, Bimal Matilal and David Seyfort Ruegg have made good use of the work of Austin and his “ordinary language” school, it is Quentin Skinner who has attempted to turn Austin’s insights into a general “theory and method” for the study of intellectual cultures. The question I want to address in this paper has to do with the applicability of Skinnerian techniques to the study of literary and intellectual Sanskrit culture in premodern India. If not all of Skinner’s methods transfer to the new context, identification of the points at which they breakdown helps to clarify the distinctive contours of Indian intellectual history, and suggests appropriate methodological innovation.     

Surveillance deputies: When ordinary people surveil for the state

The state has long relied on ordinary civilians to do surveillance work, but recent advances in networked technologies are expanding mechanisms for surveillance and social control. In this article, we analyze the phenomenon in which private individuals conduct surveillance on behalf of the state, often using private sector technologies to do so. We develop the concept of surveillance deputies to describe when ordinary people, rather than state actors, use their labor and economic resources to engage in such activity. Although surveillance deputies themselves are not new, their participation in everyday surveillance deputy work has rapidly increased under unique economic and technological conditions of our digital age. Drawing upon contemporary empirical examples, we hypothesize four conditions that contribute to surveillance deputization and strengthen its effects: (1) when interests between the state and civilians converge; (2) when law institutionalizes surveillance deputization or fails to clarify its boundaries; (3) when technological offerings expand personal surveillance capabilities; and (4) when unequal groups use surveillance to gain power or leverage resistance. In developing these hypotheses, we bridge research in law and society, sociology, surveillance studies, and science and technology studies and suggest avenues for future empirical investigation.     

Gault's Promise Revisited: The Search For Due Process

Fifty years ago, due process was introduced into the juvenile courts, but today children still do not have the guiding hand of counsel at every stage of the proceedings. In assessing the pre‐Gault world, Chief Justice Fortas observed that “[a] child receives the worst of both worlds:…he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 1 Fortas opined that “Then as now good will and compassion were admirably prevalent. But recent studies have entered with surprising unanimity, sharp dissent to the vitality of this gentle conception. They suggest that the appearance as well as the actuality of fairness‐ impartiality and orderliness‐ in short the essentials of due process may be a more therapeutic attitude so far as the juvenile is concerned.” 2 The prescience of his observation has found resonance and reinforcement with the 2013 publication of Reforming Juvenile Justice: A Developmental Approach 3 which was commissioned by the Office of Juvenile Justice Delinquency and Prevention (OJJDP). Reforming Juvenile Justice's emphasis on encouraging not only the perception but the actuality of fairness in all domains 4 connects directly to the essence of Gault's message. “Treating youth fairly and ensuring that they perceive that have been treated fairly and with dignity contribute to positive outcomes in the normal processes of social learning, moral development, and legal socialization adolescence.” 5 The research also demonstrates that public health oriented alternatives to traditional court processing promote social connection and positive youth development. 6 The OJJDP report provides a road map for promoting positive youth development and social engagement by demonstrating that supporting such policies improves public safety outcomes by reducing recidivism. In exploring whether Gault's promise of due process has been realized or is still aspirational, this article suggests that our inquiry requires us to think contextually by considering how children and families are treated in and out of the courtroom. This entails consideration of educational, child welfare and mental health services, as well as the scope of legal entitlements. Equity and fundamental fairness, euphemisms for due process, are what will truly effectuate Gault's promise and should be the benchmark for all courts and systems that engage with children.     

构建和谐社会与抽象行政行为的司法审查

依法行政与构建和谐社会是同一主题的不同层面。依法行政能否以公平正义为价值尺度,调整社会关系,平衡社会利益,整合社会资源,维护社会秩序,直接关系到构建和谐社会的成败[1]。抽象行政行为作为政府进行行政管理的一项最重要手段,是依法行政的起点和基础,但在依法行政实践中,抽象行政行为与宪法和法律相抵触,规章之间、规范性文件之间相互矛盾,政出多门,各自为政,甚至出现了超越自己立法权限进行立法的现象。抽象行政行为的不规范及监督机制的不完善是直接影响社会和谐的体制性因素之一。本文在分析我国抽象行政行为现有监督机制局限性的基础上,论述了将其纳入司法审查的必要性和可行性,以保障抽象行政行为的合法与规范,为依法行政奠定良好的法律基础,为构建和谐社会创造良好的行政法制环境。     

The unknown depths of political theory: The case for a multidimensional concept of corruption

Defining corruption has proven to be such a difficult challenge that many contemporary analysts pass over the question as quickly as possible. But while definitions are too important to be dismissed as an analytical concern, a single one-dimensional definition that will satisfy all observers will never be found. Rather than proposing yet another definition, this article explores five dimensions of the concept: corruption as social decline, as deviant behavior, as a logic of exchange, as a system of measurable perceptions, and corruption as shadow politic. All help us view corruption within actual social settings; all lend further detail to the sorts of contrasts among concepts and usages that Arnold Heidenheimer explored in his work. In the end one of the most important aspects of the issue is that of trust, which not only helps us understand how corruption functions in actual cases but also underscores the reasons why we must continue to fight it.     

Editor's Introduction

Fear is the unifying theme of the articles that follow. Not the strakh about which Anatolii Rybakov wrote, but rather the fear for the future of stability, democracy, and social justice in Russia. But most of our authors conclude either on a hopeful note or with recommendations for action. In the first article ("The Electoral Map of Contemporary Russia"), Vladimir Kolosov and Rostislav Turovskii present the findings of their analysis of voting behavior in Russia's many regions. While not unlocking individual motivations at this level of analysis, they examine the commonplace assertion that the presidential election of June-July 1996 turned on the decline in people's living standards since the overthrow of Communism and the collapse of the Soviet Union. Almost all press commentary has reported, or assumed, that the anti-Yeltsin vote reflected disillusion with a government that has increasingly impoverished most Russians. Conceding that "the political stratification of Russian regions into reformist and oppositional regions has intensified," the authors nevertheless find that poorer regions sometimes supported Yeltsin over the Communist candidate, Gennadii Ziuganov. Thus, for example, Yeltsin carried Ivanovo Oblast despite its having the highest unemployment rate in the country. They find no direct connection between quality of life and voting patterns in the elections. Political criteria, not economic determinism, offer the best explanation for why people voted the way they did.     

Regulatory Conversations

The article proposes a new site of analysis for the study of regulation: regulatory conversations, and a new theoretical approach: discourse analysis. Regulatory conversations, the communicative interactions that occur between all involved in the regulatory 'space', are an important part of most regulatory systems. Discourse analysis, the study of the use of language and communication, suggests that such interactions are constitutive of the regulatory process, that they serve important functions, that they can be the basis of co-ordinated action, and that they are important sites of conflict and contestation. The article explores five key contentions of discourse analysis, considering how each may shed light on aspects of regulatory processes. These are, first as to the meaning of language and co-ordination of social practices; second, as to the construction of identities; third, the relationship of language, thought, and knowledge; fourth, the relationship of language and power, and finally, that meaning, thought, knowledge, and power are open to contestation and change.     

Medicalization and social justice

Most social justice critiques of medical care focus upon the allocation of extant, but scarce, resources. In contrast to that focus, this article explores the preallocative arena of factors which shape the supply and availability of medical care. We identify four such factors: (1)medicalization — the tendency to regard as biologically caused various human problems which were in earlier eras ignored or attributed to other causes; (2)social inclusion — the bringing of economically deprived and socially marginal groups into participation in the medical care system; (3)biomedical transcendence — the elevation of biomedically derived concepts of human function into a social and personal world view; and (4)health absolutism — the ideology which holds individuals accountable for their own health and which, contrary to the thrust of the other factors, deemphasizes access and social equity for professionally provided medical care. While these forces all enhance the place of health as a social value, it is by no means certain that they will lead to a society which is more medically just. The article concludes with an appeal for critical analysis of the processes which shape both the medical care system and the broad social concern with medical care.     

Murder Followed by Suicide: A Newspaper Surveillance Study Using the New York Times Index

Abstract: Murder–suicide is a relatively uncommon event but as reported by the New York Times, it has occurred and continues to occur yearly. Previous research has indicated that those who commit murder–suicides tend to be men, are in or have been in an intimate relationship with the victim, victims tend to be women, and a firearm is most likely to be used. This study uses a newspaper surveillance methodology to examine such cases. Articles from the New York Times as found in the New York Times Index were coded, analyzed, and examined. The cases, 166 in total, support the findings from prior research. The trend data was examined by cross tabulations and chi‐square analysis. The findings suggest that murder–suicides are rare events and when they occur they usually involve a male perpetrator and an intimate partner victim who is either a wife or girlfriend with the event occurring in a private home. A firearm is the most commonly used method for both murders and suicides, particularly if there was more than one murder victim. The authors conclude by suggesting that future research should focus on using the forthcoming data resource in the CDC’s National Violent Death Reporting System (NVDRS) to examine the occurrence of murder–suicide.     

新《刑事诉讼法》视野下指定居所监视居住之审视与检察规制

新《刑事诉讼法》的立法初衷将监视居住从非羁押性强制措施转变为减少羁押的替代性措施，但具体的条文设计却使监视居住制度产生了内部的分裂：在嫌疑人、被告人自己住所执行的监视居住可以被认为是一种非羁押性的强制措施，但指定居所的监视居住却演变为一种准羁押性的强制措施。我们应立足司法实践，以程序正义与人权保障的价值博弈为切入点，以构建刑事强制措施体系的层次性、完整性为视角，提出通过加强检察机关的监督使该项制度更加完善与更加具有可操作性。     

监视理论的阐释:历史与批判视角

监视,作为一种全球普遍存在的社会现象,起源于现代资本主义形态和官僚制实践的增长。现代监视理论是资本主义企业、官僚组织、民族国家、机器式的工艺和新型社会连带发展的自然产物;后现代监视理论则是关于以科技为基础的、以身体为监视对象的、日常的和普遍存在的监视的理论。由边沁和福柯所解释的、与监狱和规诫理念相关联的全景监视范式受到新的社会现实和监视理论的挑战。以风险社会管理为背景,治理可以作为监视研究的一个新路径。     

The Abuse Problem

The sexual abuse of children is not new, it's newly uncovered. The authorities are receiving more complaints. The media is showing interest. The public is becoming aware. Its details are not pretty, they can repel and disgust and bring on demands for retribution. The numbers are large, Patterns are beginning to take shape showing who the victims are and who the abusers, and why. The impact is becoming known and it is huge. What one father does to his three children can grow in geometric proportions as those children each do the same to their three children, and these to theirs. The impact on crime is just becoming known: sexually abused children are prone to criminal activities and may well be a major cause of crime. The impact of false reports is also becoming know. The Salem witch trials are always before us. The possibilities of false accusation out of revenge or on a dare, or in a pique are not new, accusations satisfy a child's need for attention and status, and other children may see the possibilities for themselves. But where the sexual abuse is within the family, a hard choice must be made: to punish the offender heavily or to work with the abuser and the family to prevent future abuse. You cannot do both. It appears that the courts can bring highly beneficial results: they can provide comfort for a child victim, but more, they can provide treatment for that child and reduce the pain and guilt and fears and for that child break the cycle of abused children abusing their children who abuse their children who abuse. The courts can provide comfort for a family, but more, they can provide rehabilitation for most families where there has been abuse, restoring their strength and security. The courts can prosecute the abuser and punish him, but more, they can instead often provide rehabilitation for the abuser which is a surer way of preventing a recurrence than the disgrace of a prison. Much needs to be discovered. But from what is now know, the courts and the police and the social agencies need to be sensitized to the problem in all of its aspects. The opportunities for positive accomplishment are great.     

Household formation, institutions, and economic development: Evidence from imperial Russia

Household formation patterns have been adduced in recent years by historians and other social scientists to account for the economic development of western Europe. The so-called European Marriage Pattern, which prevailed throughout northwest Europe, is viewed as having been particularly conducive to early industrialisation and economic growth. But to what extent were household formation systems exogenous to the broader economic and social context in which they were located? Evidence from nineteenth-century Russia indicates that family systems were influenced by the same variables that determined the shape of the local economy; they were part of a complex web of institutions and thus cannot be viewed as independent determinants of economic development.