The Limits to Evidence‐Based Policy: Evidence,Emotion and Criminal Justice1

While ‘evidence‐based’ or ‘rationalist’ approaches to criminal policy may appeal to technocrats, bureaucrats and a number of academics, they often fail to compete successfully with the affective approaches to law and order policies which resonate with the public and which appear to meet deep‐seated psychological needs. They also often fail to recognise that ‘policy’ and ‘politics’ are related concepts and that debates about criminal justice are played out in broader arenas than the academy, the bureau or the agency. To be successful, penal reform must take account of the emotions people feel in the face of wrongdoing. Further, successful reform must take into account changes in public ‘mood’ or emotions over time and be sensitive to different political and social cultures. This article argues that criminal justice policies are more likely to be adopted if, in addition to the gathering and presentation of evidence, they recognise and deal with the roles of emotions, symbols, faith, belief and religion in the criminal justice system. It also recognises that evidence alone is unlikely to be the major determinant of policy outcomes and that the creation and successful implementation of policy also requires extensive engagement and evidence‐based dialogue with interested and affected parties. This necessitates a different kind of modelling for evidence‐based policy processes.     

Women Offenders and the Gendered Effects of Public Policy1

At 17%, women represent a significant proportion of all offenders under criminal justice supervision in the US. Drawing on the findings from their report, “Gender-Responsive Strategies: Research, Practice, and Guiding Principles for Women Offenders,” the authors maintain that public policy has ignored the context of women's lives and that women offenders have disproportionately suffered from the impact of ill-informed public policy. This discussion of the implications of gender within the criminal justice system is based on a simple assumption: responding to the differences between women and men in criminal behavior and to their antecedents is critical to gender-responsive policy. Building on the pathway theoretical perspective, we find that in addition to the gendered impact of the war on drugs, policy changes in welfare reform, housing, and other social policy arenas combine to create a disparate impact on drug abusing women and women of color. Key policy areas affecting the lives of women offenders and their children include welfare benefits, drug treatment, housing, education, employment, and reunification with children. We conclude that addressing the realities of women's lives through gender-responsive policy and programs is fundamental to improved outcomes at all criminal justice phases. A blueprint for gender-responsive policy development is described through six guiding principles and their policy implications.     

Dynamic Representation(s): Federal Criminal Justice Policy and an Alternative Dimension of Public Mood

Does public policy respond to public opinion? Previous research suggests dynamic representation occurs in the aggregate. Yet, most of the evidence for policy response is limited to the policy intentions of elected officials on issues related to more or less government spending. We examine policy response to an alternative dimension of public mood, public preferences for more or less punitive criminal justice policies, using multiple indicators of policy from various stages of the policy-making process. Criminal justice policy should be responsive to public preferences given the public’s concern about crime and the negative social construction of criminals. Thus, there is an electoral incentive for public officials to respond to public preferences along this alternative dimension of public sentiment regarding criminal justice policy. We estimate a DYMIMIC model of federal criminal justice policy as a function of the multiple dimensions of public policy mood using Kalman filtering. The results indicate that criminal justice policy responds to the second, not the first, dimension of public mood. We find evidence that policy-makers at multiple stages of the policy process are able to differentiate among multiple signals from the public and respond appropriately. The results present a more sophisticated portrait of democratic responsiveness.     

Missed Opportunities and New Risks: Penal Policy in England and Wales in the Past Twenty‐Five Years

This paper discusses trends in criminal justice and penal policy over the past twenty‐five years. This period has been characterised as a time of penal populism, which originated in the failure of the 1991 Criminal Justice Act, and the competition between the main political parties to be ‘tough on crime’. However, this is not the only trend to be found in penal policy. There has continued to be a strong undertow of support for rehabilitation and community penalties, including restorative justice. There has been pressure from the left as much as the right to take domestic violence, sexual offences against women and children, and hate crimes more seriously. There have been pressures to meet performance targets—which gradually transformed into calls to build the legitimacy of the justice system. Finally, there have been pressures to privatise criminal justice agencies. These various impulses have sometimes amplified and sometimes counteracted the pressures towards tough penal policy. If the period of intense penal populism ran from 1993 to 2007, inertia in the system has ensured that there have been no significant attempts to row back from tough policies, and to reassert the values of penal parsimony. Given that money has been tight since 2007 and crime has continued to fall, this must amount to a lost opportunity of significant proportions.     

Learning from Uncle Sam? Exploring U.S. Influences on British Crime Control Policy

This paper examines the idea of "policy transfer" in the arena of crime control. More specifically, it examines the influence of the United States on recent criminal justice and penal policy developments in Britain. Three policy areas are discussed: privatized corrections, "zero-tolerance" policing, and "three-strikes" sentencing. Changes in these areas are widely perceived as being strongly influenced by developments in the U.S., although there has yet to be a systematic empirical study of how and why these policy developments occurred. Drawing on a review of literature, this paper examines the plausibility of the idea of policy transfer and highlights distinct routes through which policy transfer may occur between jurisdictions. It uses Bennett's (1991) model of "policy convergence" as a framework for exploring how "emulation,""elite-networking,""harmonization," and "penetration" might have been relevant to policy changes in these areas. Finally, the paper considers how the concept of policy transfer in criminal justice and penal policy might be further examined empirically.     

Penal Populism and the Public Thermostat: Crime,Public Punitiveness,and Public Policy

This article makes the case that feedback processes in democratic politics—between crime rates, public opinion, and public policy—can account for the growth of penal populism in Britain. It argues that the public recognize and respond to rising (and falling) levels of crime, and that in turn public support for being tough on crime is translated into patterns of imprisonment. This contributes to debates over the crime–opinion–policy connection, unpacking the dynamic processes by which these relationships unfold at the aggregate level. This uses the most extensive data set ever assembled on aggregate opinion on crime in Britain to construct a new over‐time measure of punitive attitudes. The analysis first tests the thermostatic responsiveness of punitive attitudes to changes in recorded crime rates as well as self‐reported victimization, and then examines the degree to which changes in mass opinion impact on criminal justice policy.     

Race,Medicine, and Social Justice: Pharmacogenetics,Diversity, and the Case of BiDil

In this article, I probe an example of high‐technology medicine as a case study in the problems of the regulation of advancing technology. Specifically, I address the implications of pharmacogenomics—an emerging form of population‐based health care intervention—for public policies designed to eliminate racial disparities in health. Using the case of BiDil, a historical precursor to pharmacogenetic technology, I offer a framework for further studies of high‐technology medicine in which policy analysis is part of a social review based on the justice standard of ex ante mutual advantage. It is the contention in this article that the most just and reasonable deployment of pharmacogenomics is as a compensatory tool to alleviate health disparities.     

公正和效率的两难选择——评刑事诉讼法有关侦查程序的修改

我国侦查活动中公正和效率价值的双重缺失一直受到诟病。“宽严相济”刑事司法政策的确立以及司法体制和工作机制改革决策助推了刑事诉讼法再修改。立足于公正和效率价值的平衡,本次刑事诉讼法修改对有关侦查活动的证据制度、强制措施、辩护程序、讯问程序、侦查措施、侦查行为的监督等进行了完善。但基于我国国情,在人权保障、诉讼构造、侦查构造、侦查程序的科学性、侦查程序自治、侦查程序借鉴等方面．理想与现实之间仍存在一定差距。     

Reducing Aboriginal Over-representation in Prison

The Royal Commission into Aboriginal Deaths in Custody attributed the high rate of Aboriginal deaths in custody to the over-representation of Aboriginal people in prison. Most analyses of this over-representation focus on the issue of systemic bias in policing, the law or the operation of the criminal justice system. The present article contends that, while discriminatory treatment of Aboriginal people by police and the court system is an historical fact, the leading current cause of Aboriginal over-representation in prison is not systemic bias but high rates of Aboriginal involvement in serious crime. We argue that efforts to reduce Aboriginal imprisonment rates through policing or criminal justice system policy have failed and will continue to fail until they succeed in reducing crime in Aboriginal communities. Future efforts to bring down Aboriginal imprisonment rates should focus on this issue.     

Macro Implementation: Testing the Causal Paths from U.S. Macro Policy to Federal Incarceration

Policy implementation is usually studied at the micro level by testing the short‐term effects of a specific policy on the behavior of government actors and policy outcomes. This study adopts an alternative approach by examining macro implementation—the cumulative effect of aggregate public policies over time. I employ a variety of methodological techniques to test the influence of macro criminal justice policy on new admissions to federal prison via three mediators: case filings by federal prosecutors, conviction rates in federal district courts, and plea bargaining behavior. I find that cumulative Supreme Court rulings influence the incarceration rate by altering conviction rates in district courts; however, I find only mixed evidence of congressional and presidential influence. The results suggest that U.S. macro policy influences bureaucratic outputs by altering the behavior of subordinate policy implementers; however, the Supreme Court may enjoy an advantage in shaping criminal justice policy.     

侦查理论研究的两种新视角

从侦查基本理论范畴所具有的意义出发,“纯粹侦查学”和“刑事司法系统”为两种新的研究视角。通过区分事实和法律两个范畴,“纯粹侦查学”的研究视角认为侦查主要解决事实问题,“刑事司法系统”的研究视角对侦查的功能进行了新的界说。     

宽严相济的刑事政策与未成年人犯罪刑罚的适用

宽严相济的刑事政策要求在适用刑罚时要根据实际需要当宽则宽、当严则严，宽严审时、宽严有度。由于未成年人身心发育的特点及犯罪原因的特殊性，对未成年犯科刑时应当体现出轻缓、宽容的一面，对较为严厉且不能实现刑罚目的的无期徒刑、财产刑及资格刑的适用应当作出相应的限制。     

Children's Exposure to Domestic Violence: Holding Men to Account

The issue of domestic violence has gained greater recognition within public policy in the United Kingdom over the past decade. There is a recognition that up to one million children may have been exposed to violence between the adults with whom they live. This has consequences for the child in both the short and long term in terms of social and emotional adjustment. However, most male perpetrators of domestic violence are never held to account through the criminal justice system and therefore the child protection system is the safety net for these children. This though can result in a response that is premised on women's responsibility to protect their child from experiencing harm, typically by either leaving or forcing her partner to leave. Child welfare professionals do not engage with the men who are the source of the problem, rather women are held accountable for allowing their children and themselves to be in this situation. In this article this issue is discussed and proposals offered to improve this situation through empowering women, holding men to account for their behaviour whilst also recognising their position as fathers.     

Regulation and governance versus criminology: Disciplinary divides,intersections, and opportunities

This paper seeks to bridge the disciplinary gap between regulation and governance studies, and criminology. Based on a review of theoretical and empirical work on corporate crime, this paper argues that divergent approaches to questions of individual agency, localized variety, and political context, have drawn these two disciplines in different directions. Regulatory governance scholarship has thrived as a discipline, but has also narrowed its focus around these issues. Corporate criminology offers a means of broadening this focus by drawing attention to the normative theorizing behind the regulatory project. At the same time, however, insights drawn from regulatory governance scholarship can prompt corporate criminology to innovate by broadening the scope of its engagement beyond the sphere of traditional criminal justice. The paper argues for the development of a research agenda to sit at their intersection, to engage with the challenges that exist at the interface between criminal and regulatory law.     

The symbiotic tensions of the regulatory–carceral state: The case of cannabis legalization

Recent scholarship has emphasized the need to develop a polymorphic conceptualization of the regulatory state. This article contributes to this theory-building project by outlining a research agenda for exploring the symbiotic interactions and tensions between the regulatory and carceral morphs of the state. Using the case study of cannabis legalization reforms in the United States, we argue that the legitimation deficits of the carceral state stimulate the proliferation of new regulatory frameworks for governing social problems that were traditionally handled by the criminal justice system. We demonstrate how the polymorphic approach illuminates the ways in which the regulatory and carceral morphs of the state compete for influence over shared policy domains, but also complement and reinforce one another. Thus, rather than precipitating the demise of the carceral state, cannabis legalization reforms sustain a bifurcated governance structure perpetuating long-standing patterns of using drug law as a means for racialized social control.     

Civic implications of restorative justice theory: Citizen participation and criminal justice policy

Restorative justice, a normative theory and reform movement emphasizing dialogue and reconciliation between victim, offender, and community, is a widespread, if experimental, part of the practice of criminal justice in the United States. This essay argues that restorative justice draws connections between civic engagement and punishment practices that distinguish it as a normative theory of criminal justice. Advocates of restorative justice expect the growth of non-punitive attitudes and the weakening of support for incarceration to emerge from a public and lay-oriented context of adjudication. The role of lay participation in achieving social change, although prominent in restorative justice critiques of mainstream criminal justice norms and practices, has not been clearly articulated in practical terms. Significant ambiguities remain regarding the degree of lay participation, scope of authority, and the focus of restorative justice forums. The essay argues that an adequate assessment of restorative justice experiments should include an analysis of their impact on public attitudes towards crime and crime control policy and not simply on their impact on the specific victims and offenders involved. The link between less incarceration and restorative justice forums is public willingness to grant them the authority to hear and sanction offenses that would ordinarily receive incarceration. Whether and how they can influence broader public attitudes, then, is a critical test of restorative justice effectiveness.     

赔偿能力高低与交通肇事罪成立的关系——由最高人民法院司法解释的规定所引出理论上的看法

最高人民法院《关于审理交通肇事刑事案件具体应用法律若干问题的解释》将交通事故责任人有无财产赔偿能力以及赔偿能力的高低作为定罪量刑的因素之一，并不是以钱买罪。恰恰相反，它体现了是刑法谦抑性、宽严相济的刑事政策以及和谐社会的要求，符合当代法律的发展趋势。     

The Color of Devolution: Race, Federalism, and the Politics of Social Control

In this article, we seek to advance scholarship on the origins and consequences of policy devolution by analyzing state decisions to give local authorities control over welfare policy. The first part of our analysis explores the political forces that systematically influence state decisions to cede policy control to lower-level jurisdictions. In this context, we propose a general Racial Classification Model of how race influences social policy choice. Our findings support this model as well as social control perspectives on welfare provision. Building on these results, we then show how modest but consistent racial effects on policy choices concatenate to produce large disparities in the overall policy regimes that racial groups encounter in the federal system. The empirical findings illuminate the fundamental role that federalism plays in the production of contemporary racial disparities and in the recent turn toward neoliberal and paternalist policies in American poverty governance.     

The Long Shadow of Police Racial Treatment: Racial Disparity in Criminal Justice Processing

This article explores racial disproportionality in criminal justice processing in an era of punitive criminal justice policies and mass incarceration. Using arrest data from New York State, the authors compare the racial disparity in prison sentencing with the disparity at arrest while controlling for crime type and criminal history of the arrest population. Findings show that the racial disparity in prison sentencing at the state level is established before courts begin criminal case proceedings. Scholars and policy makers interested in the sources of racial disparity in incarceration should concentrate on the processes that generate crime and arrests. However, a decrease in racial disparity at prison sentencing, relative to arrest, suggests that the practices of courtroom actors still merit scholarly attention.     

关于盗窃罪司法解释的思考

新近公布的盗窃罪司法解释全面贯彻了宽严相济的基本刑事政策。盗窃是否意味着"秘密窃取",旧司法解释将其定义为秘密窃取,而新司法解释则适应犯罪形势变化的需求取消了该规定。在盗窃罪牵连犯的处罚原则上,新司法解释确定为从一重从重处罚,更符合罪责刑相适应原则。单位相关人员犯非法定单位犯罪是否构成盗窃罪应以自然人的盗窃罪犯罪构成要件为判断标准,符合盗窃罪构成要件的应依法追究相关人员的刑事责任。