Pressing for Sentence? An Examination of the New Zealand Crown Prosecutor’s Role in Sentencing

Prosecutors are among the most powerful actors in any criminal justice system. Their exercise of discretion, however, has not been subjected to the same level of public and empirical scrutiny as other parts of the criminal justice system. To deepen understanding, I empirically explore for the first time the form, function and limits of the New Zealand Crown Prosecutor’s role at the sentencing stage of the criminal justice process. Semi-structured interviews of a non-representative sample of ten Crown Prosecutors are analysed using Hawkins’ framework of “surround”, “field” and “frame”. Findings suggest that whilst New Zealand’s regime shares history, principles, and structural features with English and Australian regimes, it goes further to permit Crown Prosecutors a more assertive role in sentencing. In the ‘surround’, populist and managerial pressures create frustration, strain, and concern. Changes to funding models suggest the potential for unjust sentencing outcomes has increased. The “surround” also intrudes upon and transforms decision-making “frames”. The opinions and presence of stakeholders influences decisions and practices at office and individual levels. Justice may be reactive, forward-looking, or negotiated depending on the particular mix of individuals involved – something accentuated by the regime’s privatised and decentralised form. Findings also suggest that Crown Prosecutors “frame” their role in occupational terms. The lack of interest of universities, professional bodies, and law and policy-makers in offering or requiring prosecutorial training before entry to the role is influential. This renders decision-making more susceptible to pressures in the “surround” and “field”, and increases variation in decision-making “frames”.     

Does Mandatory Diversion to Drug Treatment Eliminate Racial Disparities in the Incarceration of Drug Offenders? An Examination of California’s Proposition 36

Objective

This paper addresses previous shortcomings in the literature on racial disparities in incarceration for drug offenders by taking advantage of a change in sentencing policy in California and a rich administrative dataset that is able to create a sample of comparable White and Black offenders.

Method

We use a nonparametric propensity weighting approach to identify similarly situated White and Black male offenders charged with drug-related offenses. We combine this approach with a difference-in-differences model to estimate the effect that a change in California sentencing law for convicted non-violent drug offenders had on racial disparities in prison and drug treatment dispositions.

Results

We find substantial reductions in the probability of a prison sentence after the policy change, but not differentially for Blacks. Blacks remain more likely to go to prison than similarly situated Whites after the policy, although the policy does lead to more referrals to treatment for Blacks.

Conclusions

This paper shows that even after comparing Blacks and Whites in similarly situated contexts that racial disparities in prison commitments remain after sentencing law changes that mandate diversion to drug treatment. The results suggests that addressing racial gaps in the commitments to state prisons will likely require more than shifting the eligibility of drug convictions for prison, as accumulated criminal histories are the primary driver of prison sentences. This means that expanding diversion options from prison alone will not reduce the racial gap in commitments to prison for drug offenses more than incrementally.

     

The Influence of the Social Bond on Self-control at the Moment of Decision: Testing Hirschi’s Redefinition of Self-control

Hirschi (2004) redefined self-control as the tendency to consider the “full range” of potential costs relevant to a criminal act, suggesting that such costs vary in number and salience based on one’s level of self-control. He also suggested self-control, as expressed at the moment of decision, was influenced by the individual’s level of social bonding; those with fewer bonds would exhibit less self control by considering fewer costs and finding them less salient when making a decision. This study presents an initial attempt to examine Hirschi’s theoretical statement linking concepts from the two theories. Presented with a hypothetical drunk driving scenario, participants were asked to identify perceived costs and salience as a measure of self-control, as Hirschi (2004) suggested. Results support Hirschi’s assertion demonstrating that the social bond impacts offending likelihood through its relationship to self-control expressed within the decision. Future theoretical and empirical directions are outlined.     

The Situation in Libya and the ICC’s Understanding of Complementarity in the Context of UNSC-Referred Cases

The PTCI’s decision on the admissibility of the case against Saif Al-Islam Gaddafi and the subsequent AC Judgement are the first expressions of the ICC’s understanding of complementarity in Article 13(b) cases. Admissibility decisions display how the ICC attempts to strike the balance between international justice and states’ right to exercise their territorial criminal jurisdiction. In relation to cases triggered by UNSC referrals, these decisions also mark the delicate moment in which the ICC’s interaction with the politics UNSC is unveiled. In the case against Saif Al-Islam Gaddafi the ICC seems to have taken deferent approach toward the highly authoritative mechanism that triggered the case. Legally speaking, these decisions might appear as a missed opportunity. They fail to provide a conclusive clarification of the parameters of the ‘same case’ test. First, the AC did not subscribe to the offence-specific interpretation of the ‘same conduct’ test embraced previously by PTCI and, in the name of consistency with the Court’s previous case law, reverted to the incident-specific approach adopted in Lubanga. However, the case-by-case approach adopted by the AC undermines the legal certainty that the AC meant to achieve in the definition of the admissibility test. Moreover, the AC has failed to appraise the PTCI’s conclusion that domestic implementation of international crimes is not necessary for the purposes of successfully challenging the admissibility of a case. Finally, in light of the constraints imposed by Article 17(2) on the relevance of due process violations, the PTCI’s decision to reject on the grounds of ‘inability’ as opposed to ‘unwillingness’, which again the AC did not consider, could be seen as evidence of a deferent stance toward the UNSC.     

Islamo-Arabic Culture and Women’s Law: An Introduction to the Sociology of Women’s Law in Islam

The present paper addresses the mutual relationship between society and law in shaping women’s law in Islam from the perspective of the sociology of law. It analyzes the role of pre-Islamic social, political, and economic structures in the Arabian Peninsula in modeling women’s law and highlights some customary laws which were rejected or revived and integrated in Islamic jurisprudence. In this regard, the paper reviews issues such as polygyny, rights to inheritance, marriage, the process of testimony and acceptable forms of evidence in legal matters, diyya (blood money), the exclusion of women from the judiciary and the system of issuing fatwa (legal opinion), natural right of guardianship (wilāya) of underage children after divorce, and regulations related to the veil. Finally, referring to the manner of the Prophet of Islam, the paper suggests that ?urf (custom) can be considered as a source of Islamic legislation alongside other commonly known sources of fiqh (Islamic jurisprudence).     

Confessing their Crime: Factors Influencing the Offender’s Decision to Confess to the Police

Confessions are crucial to successful police investigations but scholars have significantly overlooked factors that contribute to an offender’s decision to confess a crime. This study aims to examine a large array of factors that play a role in the offender’s decision to confess a crime to the police and potential interaction effect among them. A total of 221 adult males incarcerated in a federal Canadian penitentiary were recruited. Correctional files, police reports, and offenders’ self‐reported data were collected and analyzed. Controlling for sociodemographic, criminological, and contextual factors, a series of logistic regression analyses were conducted. Findings highlighted the predominant role of police evidence over and above other factors analyzed. Furthermore, sociodemographic and criminological factors played a more important role in the offender’s decision to confess when police evidence was weak. Findings are discussed in light of the current scientific literature on the determinants of offenders’ decision to confess their crime.     

Risk Factors for Women’s Intimate Partner Violence Victimization: An Examination from the Perspective of the Schema Therapy Model

This study attempted to examine risk factors for intimate partner violence (IPV) victimization against women in terms of the schema therapy model (STM). Seventy-nine shelter-residing female IPV victims and 78 married female IPV non-victims participated in the study. The Young Schema Questionnaire Short Form, the Young Parenting Inventory, the Young Compensation Inventory, and the Young Avoidance Inventory were used. The results revealed that being young and having low income were risk factors for IPV victimization. Paternal parenting style was also found to be a further risk factor in addition to demographic variables. Further, the endorsement of disconnection and the unrelenting standards schema domains presented further information predicting IPV victimization above and beyond demographic variables and parenting styles. Maladaptive coping styles did not reveal themselves as maintenance factors for IPV victimization when the information gathered from demographic variables, parenting styles, and schema domains is taken out. The results are discussed in terms of the STM.     

Levinas’s Contribution to the Law of Hospitality

Liverpool Law Review - This article examines the ethical thinking of Levinas, from which Derrida’s Law of Hospitality is derived, to see if it is sustainable in the face of Badiou’s...     

‘Honourable’ Behaviour and the Conceptualisation of Violence in Ethnic-Based Organised Crime Groups: An Examination of the Albanian Kanun and the Code of the Chinese Triads

Within Albania and China and their respective diasporas, a history of extreme violence, both official and unofficial, is widely accepted but not easily understood from a Western perspective. Over the course of centuries both societies have experienced turmoil and in the 20^th century spent decades under the disastrous communist dictatorships of Enver Hohxa (1944–1985) and Mao Zedong (1949–1976). Acts of organised/collective violence should be interpreted in their historical and cultural contexts. As both Albania and China underwent considerable internecine feuding, and all manners of deprivations and oppressions under the governance and proclamations of their various rulers, it may not be surprising that their subjects became inured to violence. Violence is neither meaningless nor peculiar to China/Albania. One explanation arises from the continuing purchase of ancient codes of ‘extreme violence’. This paper describes two ancient instruments justifying ‘excessive violence’ that have continued to exist even today and directly link them to the violent behaviour of contemporary Albanian and Chinese organised crime groups. The paper will explore the historico-cultural origins of Albanian and Chinese organised crime and their recent reputation as ‘ultra-violent’ actors. Specifically we examine the 15^th century Albanian legal code known as the Kanun of Lek Dukagjini, and the 17^th century code of the Chinese Hung Mun (Triad Society).     

Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack‐Cocaine and Powder‐Cocaine Cases

Recently there has been a call for research that explores decision‐making at stages prior to sentencing in the criminal justice process. Particularly research is needed under a determinate sentencing system where judicial dispositions are usually restricted by guidelines, which increases the importance of earlier decision‐making stages. As an answer to this call, and in an attempt to build on currents studies on the effects of departures as an intervening mechanism, and a source of unwarranted disparity, this study explores federal sentencing data on offenders convicted of crack‐cocaine and powder‐cocaine offenses. Although decision‐making of all criminal justice actors generally, and prosecutors specifically, has been the subject of much research, studies have yet to resolve the nature and outcome of their “autonomous” discretion. This autonomy becomes especially salient regarding prosecutorial decisions for substantial assistance departures. In deciding who receives a substantial assistance departure, the prosecutor has carte blanche power.     

Can Flux Bring About Flux? An Appraisal of the Buddhist Momentarist’s Response to the Causal Objection

The doctrine of radical impermanence (k?a?abha?ga) expresses the temporal dimension of Buddhist metaphysics, especially in the philosophy of Dharmakīrti and his successors. Most straightforwardly, the doctrine says that everything that exists is momentary; we are not impermanent (anitya) in the sense that we perish eventually, say when our brain ceases functioning, but rather we perish immediately upon conception. The person who begins to write this sentence and the person who completes it are, strictly speaking, different entities. However, there is a devastating problem for the doctrine: How can any momentary entities be causally efficacious (arthakriyā), and more particularly, given their extremely meager duration of existence, how might the momentarist explain the phenomena of cooperation among contemporaneous entities to occasion novel entities, such as seeds, soil, water and sunlight giving rise to sprouts? Even more difficult, can the momentarist offer such an explanation that does not undermine his negative claim that non-momentary things cannot exist? ?āntarak?ita (eighth century) and Ratnakīrti (eleventh century) offer answers, but they both fail. By meticulously analyzing and evaluating their arguments, I identify the stumbling blocks of their arguments and show what needs to be done to save the doctrine of momentariness.     

From the Officer’s Perspective: A Multilevel Examination of Citizens’ Demeanor during Traffic Stops

Over the past 60 years, a substantial body of research has considered the influence of citizens’ demeanor on police behavior; and more recently, the correlates of citizens’ demeanor. This study advances our understanding of the demeanor construct by measuring officers’ perceptions of citizens’ disrespect, non‐compliance, and resistance during traffic stops. Using multilevel statistical models, we examine the correlates of citizens’ demeanor and assess the racial differences in these perceptions. The findings demonstrate that officers’ perceptions of citizens’ demeanor vary across racial/ethnic groups, after controlling for other relevant factors. Although White officers were significantly more likely than Black officers to classify drivers as disrespectful, Black and White officers were equally likely to report drivers as displaying behaviors that were non‐compliant and/or verbally resistant. Black drivers were significantly more likely to be reported as disrespectful, non‐compliant, and/or resistant, regardless of the officers’ race. The implications for future research and policy are discussed.     

An analysis of how the police ‘caution’ is presented to juvenile suspects in England

In England and Wales, suspects must be given a police caution before they are questioned. The purpose of the caution is to explain a suspect's right to silence as a protection against self-incrimination. However, the evidence on whether the caution fulfils its purpose is limited. The aim of the present study was to describe how cautions were delivered in interviews with juvenile suspects in England. First, the study set out to describe how the caution was delivered to suspects during actual police interviews. Second, the study examined whether suspects claimed or demonstrated understanding of the caution. Third, the study analysed how the caution was explained by police officers. In total, the study examined 38 cautions from 31 interviews. The results indicated that police officers delivered the caution at a speed that is likely to be too fast for juvenile suspects to comprehend. Juvenile suspects often claimed to understand the caution, but when asked, failed to demonstrate comprehension. On the other hand, police officers often explained the caution to juvenile suspects, but not always correctly. Both suspects’ and police officers’ explanations of the caution revealed several misconceptions. The results suggest that the caution may not safeguard suspects as intended.     

An analysis of the United Kingdom’s cannabis market using crowdsourced data

This article contributes to the growing literature on the use of computer-mediated communications to research illicit markets. In it, we conduct an analysis of the British cannabis market using data crowdsourced from a publicly available platform, PriceofWeed.com. Crowd-sourced transaction data present some new insights into the British cannabis market. First, this study has tracked the trafficking flow of cannabis within the UK. Second, it shows the extent to which a quantity discount is granted to consumers. Third, it discusses purchasing habits of cannabis users. Conclusions suggest new areas of application of crowdsourcing to research hard to reach and deviant populations.     

The Impact of the Registered Intermediary on Adults’ Perceptions of Child Witnesses: Evidence from a Mock Cross Examination

Registered intermediaries are communication specialists appointed to facilitate the communication of vulnerable witnesses participating in the criminal justice system in England and Wales. Intermediaries assess the vulnerable individual’s communication and provide recommendations to practitioners for how to obtain the individual’s ‘best evidence’ during police interviews and in court. The scheme was implemented nationally in 2008, but has not been subject to rigorous research. The aim of the current article is to provide an account on adults’ perceptions of the vulnerable individual when an intermediary assists their communication in court. In the present study 100 participants viewed a mock cross examination of a child witness either with or without an intermediary present. Participants rated the child’s behaviour and communication, and the quality of the cross examination, across a number of different variables. The age of the child was also manipulated with participants viewing a cross examination of a four or a 13 year old child. The results showed the children’s behaviour and the quality of the cross-examination were more highly rated when the intermediary was involved during cross-examination. The older child’s cross-examination was rated as more developmentally appropriate, however no other age differences or interactions emerged. The findings have positive implications for jury perceptions of children’s testimony when they are assisted by an intermediary in court, regardless of the age of the child witness. The success of the intermediary scheme in England and Wales may encourage the implementation of intermediaries internationally.     

An evaluation of the UK’s anti-money laundering and asset recovery regime

This paper describes the UK’s anti-money laundering and asset recovery laws and the aims and objectives behind the regime since the introduction of the Proceeds of Crime Act in 2002. It then evaluates the regime in terms of the amount of criminal assets recovered, its application against organised crime and its impact upon the price of illegal drugs.

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Freedom to think – the value of multiple clinical narratives in women’s prisons†

Abstract

The merits of being multi-lingual are widely recognised. This paper considers the application of this metaphor to the conceptualisation of clinical work in a women’s prison. We suggest that sharing ‘languages’ from different theoretical orientations in open fora enables teams to build deep and nuanced understandings of clinical and systemic complexity, of particular value in secure settings. This discussion reflects the service model developed and used within HMP/YOI Holloway, a large women’s prison in London, which has recently been closed. We utilise a case example, with formulations and recommendations from several perspectives, to illustrate the value of maintaining a rich, inclusive discourse. We describe the benefits of such an approach to staff teams, to institutions and to those we serve, and consider the implications for organisation of services to maximise potential for change and recovery.     

Shifting Interpretation in International Court of Justice’s Decision in the Islamic Republic of Iran v. United States of America: A Deliberate Step?

Iran and the United States (US) have resorted to the International Court of Justice (ICJ) on five occasions to settle their disputes. The latest dispute was initiated by Iran and pertains to US’s decision of withdrawal from the Joint Comprehensive Plan of Action (JCPOA) agreement and re-imposition of sanctions on Iran, including its nationals and companies. In this brief critique, the authors have analysed the preliminary objections and the ICJ’s approach in deciding the dispute. The authors have noticed that the ICJ digressed from its earlier decisions which involved the Treaty of Amity 1955 between Iran and the US. It is also to be noted that the ICJ has not substantiated its deviation with analytical observation. Also, it is opined that although the international adjudication lacks a system of precedent, it is the sacrosanct duty of the ICJ to establish a coherent jurisprudence in the interest of justice, which the ICJ has consciously neglected to achieve in this present dispute.