Beyond proportionate punishment: Difficult cases and the 1991 Criminal Justice Act

Within six months of implementation, the Criminal Justice Act 1991, which had been hailed as the most important piece of criminal justice legislation in England and Wales for many years, was already being undermined in practice, and a new Act, which amends or even reverses some of its more progressive principles, was brought before Parliament. This paper looks at some problems of proportionality in practice — through discussion of penological principles, and through consideration of the kinds of cases which are most difficult for a desert approach. Alternative ideas are examined to see whether they could offer any better framework for penal policy and practice. A mixed theory is advocated, with parsimony as its most important principle.I am grateful to Nicola Lacey, Mike Levi, Mike Maguire and Andrew Von Hirsch for comments on the first draft of this paper.     

The hate that dare not speak its name: Pornography qua semi-political speech

In this essay we shall examine the contemporary jurisprudential thinking and legal precedents surrounding the issue of the sanctionability of pornography. We shall catalogue them by their logical presumptions, such as whether they view pornography as speech or act, whether they view pornography as obscenity, political hate-speech or anomalous other, whether they would scrutinize legislation governing pornography by a balancing of the harm of repression against the harm of permission, and who exactly they view as the victims.We shall take a special interest in the most recent, but unsuccessful, attempt by a subgroup of feminists to proscribe pornography by treating it as neither political speech nor sexual speech but speech which causes harm which is both political and sexual. They would like it to be considered as a special kind of odious propaganda undeserving of protection because it promulgates a mental state conducive to criminal activity, and hence is criminal in and of itself. However, the repression of propaganda, even odious propaganda, is not so easily accomplished in this country.Most anti-censors have emphasized the uncertainty of the causal connection between pornography and sexual violence. We shall contend that this is not the essential issue, and that, even if we agree with the allegations of pornography's prurient non-intellectual appeal and its tendency to excite criminal hostility, the current understanding of the Bill of Rights allows sanctioning only under the stringent requirement of the showing of a clear and present danger of specific and immediate acts.We raise the question of whether there should be a new standard for speech which is simultaneously political and sexual, and/or for speech whose harmful message is presented subliminally, on the grounds that such speech may not be adequately opposed by counter speech in the marketplace of ideas.     

Application of forensic toxicology to the problem of domestic violence.

The role of the forensic toxicologist in helping to determine causes of death or in aiding in the resolution of "driving under the influence" or similar cases is well known and clearly understood. Less clearly defined is the position of the forensic toxicologist vis-à-vis other socially significant problems. However, as the 21st century approaches, it is worth considering how forensic toxicology can help in unraveling some of these problems. The problem of violence between intimates--that is, domestic violence--is a social problem in which it has been long felt that alcohol has played a part. Until now, though, no carefully controlled toxicological studies have been conducted to substantiate this or to determine whether other drug use is associated with domestic violence. At the San Francisco Medical Examiner's Office, toxicological data from both the victim and the suspect in 20 cases of domestic violence that ended in homicide have been gathered. It was found that alcohol or other drugs or a combination of these factors was invariably present in the suspect, the victim, or both. The implications of these results and how they can be used to develop a toxicological strategy to help reduce the most serious consequences of domestic violence are presented.     

Circumventing formal structure through commitment: Presidential influence and agenda control

Although the formal institutional structure that defines the temporal order of play in a policy game between the Congress and President ought to provide Congress with agenda power, the President is traditionally treated as the dominant player in this relationship. We show that if the President can make clear-cut commitments, presidential commitment can counter the dominance hierarchy and the complexion of equilibrium outcomes. Thus, the details of political interactions (in particular, the possibilities for commitment) may be as important as the formal specification of institutional structure.We thank Peter Aranson, David Austen-Smith, Ed Campos, Gerry Faulhaber, Art Frank, Ken Koford, William Riker, Janet Pack, the anonymous referees, and seminar participants at the University of Delaware, the University of Pennsylvania, and the University of Rochester for helpful comments, subject to the usual caveat. We also thank Joel Friedlander and Harold Dichter for research assistance.