Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?

Minority overrepresentation in the criminal justice system has long been an important topic of research and policy debate. In New York City, recent changes in the Rockefeller Drug Laws and the controversy around police stop-and-frisk practices have placed an even greater emphasis on the need for studying the possible impact of defendants’ race and ethnicity on criminal justice outcomes. Relatively little contemporary research, though, examines plea-bargaining outcomes. Using unique data on misdemeanor marijuana cases, this study examines the impact of defendants’ race on prosecutors’ decisions to make (a) plea offers for a lesser charge and (b) sentence offers for non-custodial punishments. Preliminary findings indicated that black defendants were less likely to receive reduced charge offers, and both black and Latino defendants were more likely to receive custodial sentence offers. However, these disparities were largely explained by legal factors, evidence, arrest circumstances, and court actor characteristics, though black defendants were still more likely to receive custodial sentence offers after including these controls. No differences were found between white and Asian defendants. Implications for research and prosecutorial practices are discussed.     

The Tantric Context of Ratnākaraśānti’s Philosophy of Mind

The conflicting positions of the two early eleventh century Yogācāra scholars, Ratnākara?ānti and his critic Jñāna?rīmitra, concerning whether or not consciousness can exist without content (ākāra) are inseparable from their respective understandings of enlightenment. Ratnākara?ānti argues that consciousness can be contentless (nirākāra)—and that, for a buddha, it must be. Mental content can be defeated by reasoning and made to disappear by meditative cultivation, and so it is fundamentally distinct (bheda) from the nature of consciousness, which is never defeated and never ceases. That mental content is thus separable from the nature of consciousness is unimaginable to Jñāna?rīmitra, who argues that all mental content cannot be so defeated, nor can it disappear completely, and who concludes that Ratnākara?ānti’s commitment to this idea can be based on nothing but faith (?raddhā). Contra Jñāna?rīmitra, I will suggest that Ratnākara?ānti’s view is based not only on faith, but is also driven by a certain (often implicit) theory of buddhahood, the implications of which he is committed to working out. Because Ratnākara?ānti’s theory of buddhahood is developed in part in his tantric work, our understanding of his position benefits from our reading it in this context, wherein buddhahood and the most effective techniques for attaining it are explored.     

The ‘Heathrow’ Case: Polycentricity,Legislation, and the Standard of Review

The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision-making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under-analysed.     

Retracing One’s Steps: Searching for the Ethics of Legal Interpretation

The article discusses the problem of interpretation in law. Are there some criteria by which we can distinguish a good interpretation from a bad one, interpretation from over-interpretation? It is argued in this article that there is always a choice in defining the meaning of a text and this choice can be seen as an ethical one. This article thus studies the question of limits of interpretation by focusing on the ethical elements of interpretation. It is argued here that legal interpretation contains a requirement of justice that shapes the responsibility that the interpreter carries for his choices of meaning. Therefore the ethical elements of interpretation are especially pressing in the interpretation of legal texts.     

The politics of misogyny: General Zia-ul-Haq’s Islamization of Pakistan’s legal system

General Zia-ul-Haq’s ambitious Islamization program vis-à-vis gender status in an Islamic Republic remains embedded in the legal system to the detriment of Pakistan’s females. Passage of the Hudood Ordinances of 1979 was a harbinger of things to come as the military junta moved to implement laws perceived to be congruent with Shariah (Islamic) law. This article examines specific discriminatory legal measures, which ensured the reversal of the slow but significant gains made by females since Pakistan’s creation in 1947; and explores how certain draconian measures enacted by Zia’s regime served to mobilize some Pakistani women to political activism.     

A Great Exploitation: The True Legacy of Property—A Review Essay

This review essay contains four parts. The first briefly recounts the contours of Rafe Blaufarb’s thesis in The Great Demarcation: The French Revolution and the Invention of Modern Property (Oxford University Press, New York, 2016). The review is not intended to be a full assessment of the book; rather, Blaufarb’s work sets the stage for the focus of my reflections, which begin in Part 3. Using Louis Althusser’s understanding of law, we can see how the demarcation identified by Blaufarb made possible a further deployment of bourgeois law, which perpetuates the dominant ideology ensuring the concentration of resources in a small number of people, seemingly without obligation to the great majority who hold no power in relation to any resources. Part 4 explains the true inequity which this demarcation has wrought, establishing and perpetuating deep divisions between those who hold the ‘social function’ inherent in property—the power unilaterally to alter social relationships—and those who do not—those who suffer the alteration of social relationships to their detriment. In short, property itself is an ideology of power, the legacy of which is not equality, but exploitation. Part 5 concludes that the great demarcation, which Blaufarb so skilfully explicates, turns out to be nothing in which humankind ought to take any pride. Rather, it has served and serves the purposes of the few to work untold misery and hardship upon the many.     

Foucault’s Critique: A Topology of Thought

In order to elucidate some of the ways in which critique and subjectivity become inextricably linked in Foucault’s oeuvre, the paper proceeds first by briefly discussing the concept of critique as limit-attitude as it appears in some of Foucault’s methodological writings. Subsequently, the main tenets of Judith Butler’s commentary on the essay ‘What is Critique?’ will be summarized, concentrating on the image of the virtuous, self-making subject that the author’s interpretation brings out of Foucault’s original text. The second part of the paper aims to develop an alternative reading of Foucault’s notion of critique by looking at the ways in which the notion of space operates as an underlying perspective in his archaeological analysis. Ultimately, it will be shown how the spatial implications of Foucault’s early works and a more passive form of subjectivity as unfolding from his discussion of the ‘author function’ and his own methodological reflections coalesce into a form of practical critique, which, as wished by the author, may take ‘the form of a possible transgression’ (Foucault 1984a, p. 45).     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

Crime, Freedom and Civic Bonds: Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society.     

Japan’s Reformed Prosecution Review Commission: Changes,Challenges, and Lessons

This article evaluates how Japan’s Prosecution Review Commission (PRC) has performed since it was reformed in 2009 to allow panels of 11 citizens to override the non-charge decisions of professional prosecutors. In the first eight cases of “mandatory prosecution” that have occurred since 2009, the conviction rate is 20%—far lower than Japan’s usual conviction rate, which exceeds 99%. In the ninth case of mandatory prosecution, three former executives of the Tokyo Electric Power Company have been subject to mandatory prosecution for “professional negligence resulting in death and injury,” for failing to prevent the nuclear meltdowns at Fukushima that were precipitated by the earthquake and tsunami of March 11, 2011, which killed 18,500 people and caused 200,000 more to flee their homes. As of 2018, the trial of the Tepco executives is still in progress. This evaluation study of prosecutorial reform in one Asian nation suggests that, in principle, prosecutors’ non-charge decisions can be checked and controlled. In practice, however, Japan’s PRC reform has done little to alter the standard operating procedures of professional prosecutors. Further reform of the PRC may be necessary.

     

Prāsaṅgika Epistemology: A Reply to Stag tsang’s Charge Against Tsongkhapa’s Uses of Pramāṇa in Candrakīrti’s Philosophy

Stag tsang, amongst others, has argued that any use of mundane pramā?a—authoritative cognition—is incompatible with the Prāsa?gika system. His criticism of Tsongkhapa’s interpretation of Candrakīrti’s Madhyamaka which insists on the uses of pramā?a (tha snyad pa’i tshad ma)—authoritative cognition—within the Prāsa?gika philosophical context is that it is contradictory and untenable. This paper is my defence of Tsongkhapa’s approach to pramā?a in the Prāsa?gika philosophy. By showing that Tsongkhapa consistently adopts a non-foundationalist approach in his interpretation of the Prāsa?gika’s epistemology, and by showing that he emphatically denies any place for the foundationalist epistemology of Dignāga and Dharmakīrti in the Prāsa?gika system, I will argue that Tsongkhapa’s epistemology emerges from Stag tsang’s criticisms unscathed.