American penology: Words, deeds, and consequences

A primary argument underlying this paper is that it is possible to capture a particular theory or conceptual rationale in the development of a penal program strategy. Further, it is possible to implement the program in a way that corresponds to both the program strategy and theory and then to evaluate the program to determine the adequacy of both the program strategy and the theory upon which it is based. The history of U.S. penal reform does not illustrate this potential, however. Rather, U.S. penal reforms have been implemented without evaluation and have resulted in a pattern of unintended consequences, most notably increased social control and an associated undermining of democratic rights and individual freedoms, without any corresponding decline in crime. These trends and outcomes are documented in order to draw penal program and evaluation policy implications for the U.S. and their ever expanding penal complex and the Czech Republic in their ongoing efforts to implement a penal system consistent with their newly emerging democratic society. This revised version was published online in July 2006 with corrections to the Cover Date.     

A plurality of total institutions: towards a comparative penology

Data were collected in five countries, Russia, Kazakhstan, Ukraine, Canada and France between 1996 and 2003. This was used to compare and assess prison social climates. A taxonomy of social climates based on different configurations of institutional and personalized trust is proposed. Relationships between, on the one hand, assessments of the social climate by inmates and staff, and, on the other hand, the overall stability of prison as a social institution are explored. It is argued that criteria for assessment do not have an absolute character; they depend on the external context, values and norms shared by inmates. Prison reforms might destabilize the situation if they fail to take into account mutual expectations of staff and inmates. This article is written as the significantly revisited and updated version of a section in the book ([21], pp. 138–150). Previously published materials are reprinted with a kind permission of Ashgate Publishing Ltd. I am grateful to the anonymous reviewer for a number of very helpful comments and suggestions. The author also thanks Sheryl Curtis, Theresa Heath-Rodgers and Anamika Twyman-Ghoshal for helpful suggestions in editing. However, remaining inaccuracies and mistakes are only my own.     

The penology of racial innocence: the erasure of racism in the study and practice of punishment

In post–civil rights America, the ascendance of “law-and-order” politics and “postracial” ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.     

Making the rules and breaking the rules: the political origins of corporate corruption in the new economy

Recent scandals at companies like Enron and WorldCom have pointed to the systemic origins of many corporate frauds. This paper advances the argument that behind those scandals were strategic political actions that changed the regulatory and legal environment in which those firms operated and created criminogenic institutional frameworks that facilitated acts of corporate corruption. Three case studies involving (1) the California energy crisis of the late 1990's, (2) the regulation of energy derivatives, and (3) accounting treatments of stock options, are presented to illustrate how markets and the rules that govern them are the products of political processes and how they can create motivations and opportunities for corporate fraud. The implications these case studies have for the study of corporate crime and corruption are discussed.     

Evolutionary psychology and the origins of justice

Justice defines our discipline in both name and substance; yet its origin is a neglected topic. I explore the origins of the human “sense of justice” from the perspective of evolutionary psychology. My thesis is that the human sense of justice is a biological adaptation in the fullest sense of the word: That is, an evolved solution to problems faced by our distant ancestors. I explore the role of reciprocal altruism and of “cheating” and cheater detection as exerting pressure for the selection of moral outrage in our species. Moral outrage leads to the desire to punish, which serves an expiatory role. This punishment can be tempered with mercy by tapping into the evolved emotions of empathy and sympathy as cultural ideas defining all human beings as intrinsically valuable. Reconciliation and reintegration as contained in restorative justice are also examined from this naturalistic perspective. I conclude by exploring how cultural variability can be accommodated.     

Political protection and the origins of the Gulf Cartel

The history of drug trafficking in Mexico appears to be strongly influenced by specific features of the post-revolutionary authoritarian regime that has been characterized by its rampant corruption and poor levels of accountability. This is a rigorous empirical case study of state domination of the relationship with traffickers in a particular historical epoch and place. Based on research conducted through the examination of historic sources, this work explores the hypothesis that some political figures might have been colluding with members of criminal organizations, with the aim of protecting their businesses and fostering their consolidation. Such collusion has hindered the institutional functioning of key law enforcement and judicial institutions in the country. The present analysis considers these relationships in the course of three decades, the 1960s through the 1990s, and focuses on the Mexican state of Tamaulipas, where one of the most powerful and dangerous organized crime groups emerged, the so-called Gulf Cartel.     

Economic origins of the no-fault divorce revolution

Richard Posner argues that late twentieth-century divorce-law reform rendered marital relationships in the United States increasingly contractual in nature. Chief among such reforms was the no-fault divorce revolution: the widespread switch in states’ legal regimes from fault-based, mutual-consent divorce to no-fault based, unilateral divorce, which swept across America in the 1970s. While a growing literature considers the no-fault divorce revolution’s effects on divorce rates, almost no work considers its causes. Taking Posner’s observation as its starting point, this paper develops testable hypotheses relating to the potential origins of no-fault divorce reforms in the US.     

Identifying the origins of welsh local government reform

Although those within Welsh local government circles were aware that the Welsh Office was considering restructuring local government as early as December 1990, the first the general population knew of the proposed changes was in June 1991. It was in that month that the Welsh Secretary produced a consultation paper entitled The Structure of Local Government in Wales. ¹ This advocated the introduction of unitary authorities throughout Wales. The publication of this consultation paper was at the same time as those for Scotland² and England.³ This gave the impression that Wales was merely following events in England and Scotland. Such an assumption remains widespread. In the first part of his article ‘Legislating for Wales ‐ Local Government (Wales) Act 1994’ Paul Griffiths indicated that the local government changes in Wales were unplanned and perhaps unintended and a reaction to changes occurring in England.⁴ This article aims to shed more light on the background behind Welsh local government reform. It indicates that the changes in Welsh local government were more a matter of coincidence than merely a mirror of those happening elsewhere. It also argues that the changes in Wales have their own unique Welsh origins, and that the changes may well have occurred, regardless of what happened in the rest of the United Kingdom.     

The policy origins of the European economic constitution

This article traces the origins of the European economic constitution in the debate on Article 30 of the EC Treaty (general rule on the free movement of goods) between 1966 and 1969, which resulted in Directive 70/50. In this, the first archive‐based analysis of the policy origins of the Court's Dassonville (1974) decision, the article demonstrates that there was a strong continuity in the investment by a number of key actors in focusing on Article 30 to create the single market from the mid‐1960s. These civil servants and lawyers provided the backbone for the Commission's transformation of the Cassis de Dijon judgment (1979) into a powerful tool, driving back the need for legislative harmonisation and making it a cornerstone of the Single European Act of 1986. The article therefore analyses one of the key moments in the transformation of European law.     

The origins of penal populism

Five years ago after 46 years of daily deadlines – the last 38 on The Guardian – I retired to explore, with the help of Joseph Rowntree Foundation and Nuffield College Oxford fellowships, just how much influence was played by the media in the policy making process. The exercise was prompted by rising public concern over the ever widening power of the media. Onora O'Neill, the philosopher, in her Reith lectures in 2002 on trust in public institutions, noted with irony that the main champion of transparency and accountability – the media – were themselves the least transparent and accountable group in democracy. Anthony Sampson, a distinguished journalist, in his fourth edition of Anatomy of Britain in 2004, documented just how entrenched this perception was.     

The origins of quare impedit

The writ of quare impedit was, until the mid-nineteenth century, a standard real action for the recovery of advowsons. This article argues that the writ was most likely created between 1187 and 1196, and that it was, at least in part, a response to pressure from religious houses that acquired advowsons by charter of gift and were precluded from bringing the writ of right of advowson or the assize of darrein presentment.     

Agenda-setting in the German Bundestag: origins and consequences of party dominance

The procedure for setting the agenda in the German Parliament originated in the middle of the nineteenth century in the Prussian Chamber of Deputies in which an informal committee arranged the agenda by an inter-party consensus. This party-dominated procedure, continued in the Reichstag of the Empire and the Weimar Republic, was institutionalised in the German Bundestag in the second half of the twentieth century. It takes account of the central role of the Fraktionen in the Bundestag and of the specialisation and division of labour that developed within them. The procedure is designed to achieve consensus among all parties and to distribute agenda-setting power between parliament and cabinet. Though remarkably decentralised, it has predictable outcomes that contribute to the impression that the Bundestag is a stage-managed parliament.     

The hidden origins of enorm lesion

Plato's Penal Code: Tradition, Controversy and Reform in Greek Penology. Trevor J. Saunders. Oxford: The Clarendon Press, 1991. xvii + 414pp. (incl. Indexes). £50 hb. ISBN 0 19 814893 3.

Roman Marriage: Iusti Coniuges from the time of Cicero to the time of Ulpian. Susan Treggiari. Oxford: Clarendon Press. 1991. xv + 578pp. (incl. Indexes). £65 hb. ISBN 0 19 814890 9.

Marriage, Divorce and Children in Ancient Rome. Edited by Beryl Rawson. Oxford: Clarendon Press, 1991. xiv + 252pp. (incl. Index). £35 hb. ISBN 0 19 814918 2.

Law, Sex, and Christian Society in Medieval Europe. J.A. Brundage. University of Chicago Press, 1987. xxiv + 674pp. (incl. Index). £21.50 pb. ISBN 0 226 07784 5.

Church Courts, Sex and Marriage, in England, 1570–1640. M. Ingram. Past and Present Publications, Cambridge University Press, 1987. xiii + 412pp. (incl. Index). £45 hb. ISBN 0 521 386551.

The Medieval Canon Law. Teaching, Literature and Transmission. (The Sandars Lectures in Bibliography: 1987–1988). Dorothy M. Owen. Cambridge: Cambridge University Press, 1990. xii + 82pp. £25 hb. ISBN 0 521 39313 9.

Notaries Public in England since the Reformation. C.W. Brooks, R.H. Helmholz and P.G. Stein. Norwich: The Erskine Press for the Society of Public Notaries of London, 1991. ix + 148pp. (incl. Index). £60.00 hb. £29.95 pb. ISBN 1 85297 0340.

The Common Law and English Jurisprudence 1760–1850. Michael Lobban. Oxford: Clarendon Press, 1991. xvi + 315pp. (incl. Index). £35.00 hb. ISBN 019 825293 5.

Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660–1725. Robert B. Shoemaker. Cambridge: The University Press, 1991. xxviii + 352pp. (incl. Index). £40/$64.50 hb. ISBN 0 521 40082 1.

The London Hanged: Crime and Civil Society in the Eighteenth Century, Peter Linebaugh. London: Allen Lane, The Penguin Press, 1991. xxvii + 484pp. (incl. Index). £25 hb. ISBN 0 713 99045 7.

American Jurisprudence 1870–1970: A History. James Herget. Houston, Texas: Rice University Press, 1990. x + 367pp. (incl. Index.) $35.00hb. ISBN 0 89256 305 0.

Deutsche Juristen aus fünf Jarhunderten. G. Kleinheyer and J. Schröder. Heidelberg: C.F. Muller, 1989. 415pp. (incl. Index.) DM 34.80 pb.

Quellen zur Reform des Straf‐ und Strafprozessrechts, III Abteilung, NS‐Zeit (1933–1939), Band 1. Edited by J. Regge and W. Schubert et al. Berlin: Walter de Gruyter, 1991. xxi + 648 pp. (incl. Index.) DM 498.

Quellen zur Reform des Straf‐ und Strafprozessrechts, III Abteilung, NS‐Zeit (1933–1939), Band 2, 1 Teil. Edited by J. Regge and W. Schubert et al. Berlin: Walter de Gruyter, 1991. xxxi + 772 pp. (incl. Index.) DM 598.     

Privacy impact assessment: Its origins and development

Privacy impact assessment (PIA) is a systematic process for evaluating the potential effects on privacy of a project, initiative or proposed system or scheme. Its use has become progressively more common from the mid-1990s onwards.     

The origins of Iran-Contra: Lessons from the Durrani Affair

This essay concentrates on the hitherto unknown origins ofIran-Contra. Through a series of interviews with participantsand access to previously private papers, the essay establishesthe role played by the U.S. and Israel in initiating arms deals with Iran before any hostage taking in Lebanon. Therefore,it corrects the proposition advanced by Special Prosecutor Walsh and others who linked the clandestine sale of weaponsto Iran with the deteriorating situation in Lebanon.