Criminal justice policy and the psychology of peacemaking

Psychology which once was a primary influence on the development of criminal justice policy has, in recent decades, lost much of its ability to inform how laws and policies are made that concern punishment and social control. The reason for psychology's loss of inluence can be traced to the war on crime political rhetoric adopted by politicians and criminal justice administrators. This paper argues that an emerging peacemaking perspective in the criminal justice system allows the discipline of psychology to once again inform the discourse on criminal justice policy. Issues such as drug abuse, gun control, and capital punishment are appropriate subjects for a psychological perspective in the national debate on criminal justice policy.     

The “Tough on Crime” Competition: a Network Approach to Understanding the Social Mechanisms Leading to Federal Crime Control Legislation in the United States from 1973–2014

The increase in punitive sentiment in America over the last four decades is frequently attributed to changes in criminal justice policies and programs. While scholars have studied the impact of legislation and policy on justice system outcomes, less attention has focused on the role of political actors in legislative bodies who are largely responsible for enacting criminal justice legislation. The current study addresses this gap by examining the social organization of federal crime control policy in the U.S. Congress over a forty-two year period (1973–2014). Drawing from research on social network mechanisms, we examine whether crime control legislation was more politically attractive relative to other legislative topics, and whether Democrats and Republicans pursue these policies by working together or competing against each other. Our results provide novel insight into the mechanisms that contributed to the punitive movement at the federal level.     

和谐社会的刑事法治理性探讨

构建和谐社会需要实质的刑事法治,尤其需要高度重视、重新审视和检讨刑事政策的公正价值与谦抑宽容理性,合理兼顾犯罪防控和人权保障。在理论上,片面强调以报应主义论证刑法公正,把“刑法公正必然内在要求报应主义”这个命题作为一个“不言自明”的公理是存在很大疑问的。在刑事政策意义上的相对公正理性,不但内含了对犯罪规律的基本认识、对犯罪态势的基本判断、对可资利用的现实物质基础和精神文化资源的基本估价、对社会发展的基本考量、对人权尊重的基本态度,还内含了人性假设的基本立场以及在特定历史条件下的价值权衡和价值取向。现代刑事政策内含的谦抑宽容价值理念应当充分体现出最大限度地保障人权、最大限度地促进社会发展、最大限度地体现相对公正、最小限度地维持必要秩序这样一种“三大一小”理念;因此,现代刑事政策理念应当坚持“人权保障至上”、反对“犯罪防控至上”,坚持“公正至上”、反对“效率至上”。     

A model process for forensic mental health screening and evaluation

This article describes an operational definition and a model process for forensic mental health examinations developed on the bases of field research, reviews of literature and other documentary materials, and a survey of forensic mental health programs. Forensic mental health screening and evaluation is defined as the process conducted by mental health personnel, at the direction of criminal justice authorities, for the purposes of delineating, acquiring, and providing information about the mental condition of client-offenders that is useful in decision making in the criminal justice system. The proposed model encompasses 14 pragmatically oriented steps within three major structural components of the examination process—delineation, acquisition, and provision—in a manner that places the entire process in the functional context of the criminal justice and mental health systems. The definition and model are aimed at practitioners, program evaluators, and policy makers to be used as a starting point for the establishment of standards against which the practices and policies relating to forensic mental health screening and evaluation can be compared and improved.The preparation of this article was supported in part by a grant (No. 79-NI-AX-0070) by the National Institute of Justice. The views expressed are those of the author and do not necessarily reflect the positions of the National Institute of Justice or the National Center for State Courts. The author thanks his colleagues for their assistance and advice during the study upon which this article is based, as well their critical reviews of earlier documents related to this work. The comments and suggestions of Amiran Elwork and an anonymous reviewer are also gratefully acknowledged.     

论宽严相济刑事政策的定位

宽严相济的刑事政策是惩办与宽大相结合刑事政策的继承和发展。刑事政策根据其指导功能的不同,可分为刑事立法政策、刑事司法政策、刑事执行政策。宽严相济对司法领域而言,可以说是刑事司法政策;但它也指导刑事立法、刑事执行,因而也是刑事立法政策、刑事执行政策。刑事政策根据其所处层次的不同,可分为基本刑事政策和具体刑事政策。宽严相济是基本刑事政策,"严打"、"少杀、慎杀"等是具体刑事政策,后者都是前者的组成部分。说宽严相济是刑事司法政策,并不否定宽严相济是基本刑事政策。     

New wine and old wineskins: Four challenges of restorative justice

Conclusion Dissatisfaction with the current paradigm of criminal justice is leading to new programs with different visions. Some, such as restitution, can be incorporated into existing structures. Others, such as victim-offender reconciliation, point to a possible new approach to criminal justice—restorative justice. In some ways, restorative justice is simply a new application of an ancient vision. It is new wine from old vines. But those of us who celebrate the harvest are advised to remember the parable of new wine and old wineskins. Before we begin to pour—before we insert restorative features into familiar responses to crime—we would do well to reflect on what the consequences may be.This article has considered four likely consequences: the challenge to abolish criminal law, the challenge to rank multiple goals, the challenge to determine harm rationally, and the challenge to structure community-government cooperation. Although each challenge is significant, I have argued that all can be effectively addressed. Indeed, they must be if criminal justice is to become—using Justice John Kelly's image—a means of healing the wounds of crime.B.A., Wheaton College 1971; J.D., DePaul University 1975; LL.M., Georgetown University 1993. I gratefully acknowledge the assistance of Dr. Karen Strong, David Carlson, Thomas Crawford, and Dr. Daniel Dreisbach.     

Community Safety and Social Policy

This article examines community safety policy. In many countries community safety has become a replacement discourse for situational crime prevention, although in some countries such as the UK, it too is threatened with replacement by the narrower concerns of crime reduction. Community safety represents the apparent merging of the concerns of criminal justice and social policy, specifically over questions of social inclusion and exclusion. Focusing in the main upon UK policy, but also drawing upon experience elsewhere, this article scrutinises the policy of community safety, arguing that while it offers an inclusionary vision of crime control, its practice may be something rather different. More specifically, and in common with the trajectory of much advanced liberal social policy, in practice community safety may have an exclusionary effect. Thus, while community safety may represent the convergence of social and criminal justice policies, it does so on neoliberal rather than welfare liberal terms. It also means that community safety has a closer connection to policies of punitive sovereignty – particularly sentencing policies of mass incarceration – than might often be assumed.     

Determinate sentencing, formal rationality, and khadi justice in Maine: An application of Weber's typology

In the 1980s over twenty-five jurisdictions, including Maine, changed their sentencing policies. Nevertheless, only a few states approximated the goal of determinancy proposed by advocates of reform. Recent extensions of Weber's work on law finding to the area of punishment provide a means to reconceptualize the problem addressed by advocates of determinacy. This article refocuses debates about sentencing reform in terms of Weber's concept of formal rationality.It explains why one state—Maine—did not reduce judicial disparities and why determinacy failed to be introduced. Sentences from an experiment conducted among all members of Maine's judiciary are compared with guideline sentences in two states—Minnesota and Pennsylvania. This comparison clearly supports national criticism of Maine's failure to reduce judicial disparities in sentences. It is concluded that widespread sentencing disparities in Maine result from a criminal code legitimating substantively irrational decisionmaking or khadi justice. No attempt was made to move toward a formally rational system advocated by proponents of determinacy.     

The impact of higher education on crime orientations

The formulation of crime policy is as complex as the phenomenon of crime itself. Numerous orientations to crime vie for consideration in the policy process, and the result is usually a confounding mixture of concepts and policies. It is the purpose of this study to analyze four prevalant orientations to crime and to assess the impact of a college education on student attitudes toward the different orientations. The findings suggest that criminal justice education and higher education, in general, have a significant impact on individuals' perceptions of the causes of crime and the functions of the criminal justice system. Given the increased emphasis on higher education within the justice system, the educational process is likely to play an important role in the evolution of criminal justice policies.     

The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.     

犯罪被害人的经济救济

在打击犯罪和保障人权的双重要求下,犯罪人成为传统刑事政策关注的重点,对犯罪被害人的救济尤其是经济方面的救济被忽略。随着现代刑事政策的发展,人们意识到犯罪被害人地位的提高、权利范围的扩展等也应相应的纳入到刑事政策的视野中,加强对犯罪被害人的经济救济就是其核心内容。以现代刑事政策为出发点,应着力提倡三种主要的犯罪被害人救济方式:犯罪人赔偿、国家补偿以及恢复性司法模式下对犯罪被害人的经济救济,说明对犯罪被害人实行有效的经济救济是一种理想和有效的刑事政策。     

Simple Rhetoric and Complex Punitiveness: Federal Criminal Justice Responses to White-Collar Criminality

Abstract

Though criminological literature shows that the manifestation of punitiveness in the criminal justice system is complex, it rarely differentiates between responses to different kinds of crimes. This constitutes a significant gap in knowledge, as it is widely believed that white-collar crimes are treated leniently. In light of the “heating up” of political rhetoric, the expansion of federal criminal law, and the increased maximum punishments on conviction, the article aims to explore whether prosecutorial and judicial responses to white-collar crimes have become more punitive, employing rarely used datasets from the Bureau of Justice Statistics (BJS) between 1996 and 2014. It is demonstrated that these responses are more complex and less consistently punitive than the rhetoric and policies advanced by politicians. It endeavors to capture the complexity of punitiveness in practice by measuring numerous variables and multiple points in the criminal justice process, studying punitiveness from multiple angles, using prosecution and sentencing data.     

Criminal justice in the Middle East

Criminal justice in the Middle East conjures up images of severed hands, religious police, and qadi justice. Yet those seeking a more accurate picture find few sources. Conventional treatments of the region focus on Islamic law, although few Middle Eastern states actually base their legal systems on Islamic law. This article argues that in the Middle East as elsewhere, rulers use criminal justice to achieve two related ends: to maintain order generally, and to maintain a particular order — to preserve the regime in power and the interests and values of those who support it. A comparative historical analysis of the emergence of the police and judiciary links these two ends, and these two institutions.     

The use of simulation in criminal justice policy evaluation

The criminal justice system is administered at the local level by many independent agencies and departments, often without regard to each other's objectives and often at the expense of overall effectiveness. This study has attempted to relate the primary system goal of crime control to a set of policy alternatives distributed over each criminal justice sector. Specifically, a simulation model based on the techniques of “industrial dynamics” was developed to evaluate combinations of the following policies: speedy trial, no plea bargaining, and restricted bail. Data obtained from the District of Columbia's criminal justice agencies were used to validate the model. The results of the analysis indicate that the system is basically insensitive to small perturbations, but is susceptible to disruption from large changes in input and procedure. Under the given set of assumptions, continuation of current practices will lead to a gradual deterioration in performance that can only be stemmed by large expenditures on manpower and facilities.     

Why Do the Finns Trust the Police?

Ideological trends in the criminal policy of the Nordic countries since the 1960s are analysed. Although criminal policy in these countries is not unified, one can argue for the existence of a 'Scandinavian criminal policy' characterized by several common features concerning historical tradition, intensive cooperation and a similar approach to crime prevention and control. The following trends and characteristics are examined in some detail: the cycle from criticism of the treatment ideology to a reappraisal of the role of the criminal justice system and the function of penal sanctions; the differentiation of criminal policy strategies (e.g. social and situational crime prevention, cost-benefit thinking, criminal law policy, sanctions policy). Discernible tendencies towards more unified or, at least, more harmonized criminal policies on the international and European level are also examined. Active participation in this developmental process is encouraged to ensure that the fundamental principles of Scandinavian criminal policy are properly utilized.     

醉驾:“一律入刑”还是“区别对待”

如何合理划定"醉驾"犯罪圈的大小,"一律入刑"与"区别对待"两种见解存在实质性分歧。罪刑法定原则作为刑事司法不可逾越的屏障,司法机关应该通过"一律入刑"呼应其明确性要求,同时限制司法机关的权力扩张;主观主义与客观主义作为两种不同的解释方式,在实践选择的位阶上应该以文本映射的主观主义优先适用;刑法总分体系需要刑事立法与司法进行一体化贯彻,在刑事立法已然兼顾总则要求的前提下不能通过"区别对待"再次限缩分则罪名的适用范围;"一律入刑"的主张不违背宽严相济刑事政策的内在精神,刑事政策的刑法化要求刑事司法必须坚守这一法治立场。     

Liability for sexual harassment in criminal justice agencies

This article focuses on sexual harassment in criminal justice agencies from a legal perspective. The article briefly describes sexual harassment cases that address agency liability decided by the United States Supreme Court, discussing the standards of liability articulated in Burlington Industries Inc. v. Ellerth (1998), Faragher v. City of Boca Raton (1998), and Meritor Savings Bank v. Vinson (1986). A more precise understanding of when agencies are liable for the actions of their subordinates is developed through an examination of lower federal court decisions. Trends in the law are identified, as case law is categorized according to harassment by supervisors and co-workers. The article concludes by exploring the policy implications flowing from court decisions and by calling for further research on this troubling aspect of the criminal justice workplace.     

Terrorizing Criminal Law

The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak of a ‘welcome the return to the criminal justice model’? This article considers the arguments in favour of prioritizing the prosecution of terrorist suspects and asks if their prosecution can safely proceed without undue hazard to the criminal law and criminal process.     

刑事政策视野中的司法理念

刑事政策具有追求效率的本性,刑事政策视野中的司法理念应当是有效率的正义。以社会为本位的刑事司法理念重视解决犯罪问题的社会效果,体现了刑事政策的价值目标。刑事司法要关注刑事政策的需要,刑事政策才能借助法律手段来完成自己的使命。     

宽严相济刑事政策应回归为司法政策

宽严相济刑事政策在最初提出时具有明显的司法性特征,但随着实践中从司法理解向立法思路的拓展,该政策完成了向"基本刑事政策"的转变。然而,这种扩张解释没有经过系统论证,也不具有全面充分的理由。宽严相济可以在古代的"宽猛相济"中追溯渊源,其中的"宽"就是以对猛政纠偏的面目出现的。当代宽严相济刑事政策的提出,既是对中国法制传统的弘扬,更是对以前过度强调"严打"的纠正。立法的特点及基本品质表明,宽严相济刑事政策不可能直接表现为立法政策;认为该政策涵括了立法政策,会导致以下逻辑困境:无法正确处理和惩办与宽大相结合政策之间的关系;可能导致重复评价或政策的虚无化;立法有自身的品质要求,其缘由是复杂的,并非宽严相济所能涵盖;如果旧的法律规范已经被新法修改,势必不存在所谓"相济"问题。宽严相济刑事政策应回归为司法政策。