Capacity as Philosophy: A Review of Richard Lippke’s, The Ethics of Plea Bargaining

Plea bargaining is a response to capacity overload in the criminal justice system. It both preserves and belies the right to trial, making possible its glorious display but only by denying it in most cases. While plea bargaining has been documented and analysed copiously in historical, sociological and legal terms, its ethical status as an institutional practice are hazy. Richard Lippke offers an account of plea bargaining that draws on the normative debates over responsibility, culpability and desert, in aid of a holistic proposal for a morally defensible system of pre-trial adjudication. In proposing an ethical system of plea bargaining, and working through the normative challenges to this, two bigger questions become visible. These are: what are the implications of developing, in essence, an ethics of efficiency, and, how should the criminal justice system be held to account for the inequalities (and iniquities) that exist before and outside it? In this review essay, I show how these questions are constructed in the book and make some attempt at analysing them, thus engaging with the more urgent and general issue of the complicated relationship of the ideal to the real when it comes to penal practice.     

Who Sees What as Fair? Mapping Individual Differences in Valuation of Reciprocity,Charity, and Impartiality

When scarce resources are allocated, different criteria may be considered: impersonal allocation (impartiality), the needs of specific individuals (charity), or the relational ties between individuals (reciprocity). In the present research, we investigated how people’s perspectives on fairness relate to individual differences in interpersonal orientations. Participants evaluated the fairness of allocations based on (a) impartiality, (b) charity, and (c) reciprocity. To assess interpersonal orientations, we administered measures of dispositional empathy (i.e., empathic concern and perspective taking) and Machiavellianism. Across two studies, Machiavellianism correlated with higher ratings of reciprocity as fair, whereas empathic concern and perspective taking correlated with higher ratings of charity as fair. We discuss these findings in relation to recent neuroscientific research on empathy, fairness, and moral evaluations of resource allocations.     

Embutramide,a Component of Tanax®(T‐61) as a New Drug of Abuse?

Tanax^®(T‐61) is a euthanasia solution commonly used in veterinary medicine in Europe. It consists of three active components: embutramide, mebezonium iodide, and tetracaine hydrochloride. Human consumption of Tanax^®(T‐61) is usually associated with suicide attempts. In our 15‐year‐long practice, embutramide was detected only three times but within a short period. First, it was found in the urine of a 42‐year‐old veterinarian, and the other two observations were made in a 16‐year‐old young man. Urine samples were analyzed using Shimadzu Prominence TOX.I.S.II. HPLC–DAD system with online SPE extraction system. Both of the two patients denied any intention to die. These cases show that this veterinary drug may also be considered as potential drugs of abuse.     

Making sense, making good, or making meaning? Cognitive distortions as targets of change in offender treatment

Most structured sex-offender programs are based on a cognitive-behavioural model of behaviour change. Within this overarching theoretical paradigm, extensive use of cognitive distortions is seen as a central core symptom among sex offenders. However, the literature on cognitive distortions lacks a clear and consistent definition of the term. It is unclear whether cognitive distortions are consciously employed excuses or unconscious processes serving to protect the offender from feelings of guilt or shame. In this article, the dominant cognitive-behavioural interpretation of cognitive distortions is contrasted with two alternative interpretations. One is based on an attributional perspective and the notion of attributional biases. The other explanation is based on a narrative approach focusing on the action elements of cognitive distortions, that is, as something people do rather than something they have. Clinical implications of these alternative conceptualizations are discussed and illustrated throughout by a case example.     

The Andrews’ principles of risk, needs, and responsivity as applied in drug treatment programs: meta-analysis of crime and drug use outcomes

Objectives

The purpose of the present meta-analysis was to answer the question: Can the Andrews principles of risk, needs, and responsivity, originally developed for programs that treat offenders, be extended to programs that treat drug abusers?

Methods

Drawing from a dataset that included 243 independent comparisons, we conducted random-effects meta-regression and ANOVA-analog meta-analyses to test the Andrews principles by averaging crime and drug use outcomes over a diverse set of programs for drug abuse problems.

Results

For crime outcomes, in the meta-regressions, the point estimates for each of the principles were substantial, consistent with previous studies of the Andrews principles. There was also a substantial point estimate for programs exhibiting a greater number of the principles. However, almost all the 95 % confidence intervals included the zero point. For drug use outcomes, in the meta-regressions, the point estimates for each of the principles was approximately zero; however, the point estimate for programs exhibiting a greater number of the principles was somewhat positive. All the estimates for the drug use principles had confidence intervals that included the zero point.

Conclusions

This study supports previous findings from primary research studies targeting the Andrews principles that those principles are effective in reducing crime outcomes, here in meta-analytic research focused on drug treatment programs. By contrast, programs that follow the principles appear to have very little effect on drug use outcomes. Primary research studies that experimentally test the Andrews principles in drug treatment programs are recommended.     

Offender as Forager? A Direct Test of the Boost Account of Victimization

Recent research has demonstrated that burglary clusters in space and time, resulting in temporal changes in crime hotspot patterns. Offender foraging behavior would yield the observed pattern. The offender as forager hypothesis is tested by analyzing patterns in two types of acquisitive crime, burglary and theft from motor vehicle (TFMV). Using a technique developed to detect disease contagion confirms that both crime types cluster in space and time as predicted, but that the space–time clustering of burglary is generally independent of that for TFMV. Police detections indicate that crimes of the same type occurring closest to each other in space and time are those most likely to be cleared to the same offender(s), as predicted. The implications of the findings for crime forecasting and crime linkage are discussed.

Organised Criminals as “Agents of Obligation”: The Case of Ireland

Relying on Brown's (2005a, b) thesis that contemporary shifts in penal policy are best understood as a reprisal of colonial rationality, so that offenders become “non-citizens” or “agents of obligation”, this article argues, firstly, that this framework (with certain important refinements and extensions) finds support in developments in Irish criminal justice policy aimed at offenders suspected of involvement in “organised crime”. These offenders have found themselves reconstituted as “agents of obligation” with duties to furnish information about their property and movements, report to the police concerning their location and, importantly, refrain from criminal activity or face extraordinary sanctions. Secondly, it is submitted that this draconian approach to the control of organised crime is built on false premises; specifically the idea that “organised crime” as such exists and is best controlled through restrictions on the freedom of key groups or “core nominals”.     

Kamalaśīla on Doubt as the Cause of the Activity of Reading

As Funayama has shown, Dharmakīrti’s successors had an animated discussion on the nature and function of the initial statement (ādivākya) of scientific treatises in terms of its effectiveness and requisites. Arca?a (8th c.) in his comments on the initial statement of the Hetubindu considers that the initial statement, which contains the purpose (prayojana) of the treatise, is useless in prompting people to undertake the activity (prav?tti) of reading the treatise because judicious people are supposed to undertake action only due to certainty (ni?caya) which never arises from something that is not a pramā?a. For Arca?a, the initial statement is set forth only to dispel the objection of an opponent who criticizes the treatise for not having a purpose. Kamala?īla (8th c.) criticizes Arca?a on this point; for him the initial statement is effective to prompt people to undertake the reading of the treatise because people act also on the basis of doubt (sa??aya), which arises from the initial statement that is not a pramā?a but an abhyupāya for action. This paper attempts to consider how such doubt can cause reading by examining the debate in the Tattvasa?grahapañjikā and related texts. As Kamala?īla presupposes, when people act due to doubt, they may attain the desired purpose by chance but cannot escape the risks of not attaining an desired purpose and also of attaining an undesired purpose. Taking these risks into consideration, it is reasonable for Granoff to take up Kamala?īla’s position as an example of the maxim of kākatālīya in the introduction of her paper in the present volume. However, the probability for the readers of the Tattvasa?graha to achieve easy comprehension of tattva as a result of reading a full treatise, which they undertake due to doubt out of the initial statement, is higher than that for a crow being suddenly killed by a falling palm-fruit. According to Kamala?īla, the risk of not attaining the desired purpose does not prevent people from reading because such fear equally occurs in activities based on certainty. Furthermore, there is no risk of attaining an undesired purpose from the treatise because authors are supposed to undertake action only for the sake of others. Therefore, doubt which arises from an abhyupāya can make people undertake action.     

Carl Schmitt on the Secularisation of Religious Texts as a Resacralisation of Jurisprudence?

Carl Schmitt, an increasingly influential German law professor, developed a provocative and historically oriented model of “political theology” with specific relevance to legal scholarship and the authorship of constitutional texts. His “political theology” is best understood neither as an expressly theological discourse within constitutional law, nor as a uniquely legal discourse shaped by a hidden theological agenda. Instead, it addresses the possibility of the continual resurfacing of theological ideas and beliefs within legal discourses of, for instance, sovereignty, the force of law and states of emergency (or “exception”) that present themselves as relentlessly secular, even—in the case of Kelsenian jurisprudence—”scientific”. This article illustrates and then critically evaluates Schmitt’s theory in terms of the authorship of constitutional texts in particular. It includes two case studies—genocidal colonial land appropriation and Kelsenian positivism in order to illustrate aspects of his political theology. Whilst Schmitt is defended against reductionist interpretations, I show that there remains considerable unfinished business before a Schmittian approach to legal theory merits full acceptance.     

Evaluation of ninhydrin as a fingermark visualisation method – A comparison between different procedures as an outcome of the 2017 collaborative exercise of the ENFSI Fingerprint Working Group

In 2017 the Fingerprint Working Group (EFP-WG) of the European Network of Forensic Science Institutes (ENFSI) undertook a collaborative exercise (CE) with the aim of assessing the use of ninhydrin as a fingermark development technique in the laboratory. The test was prepared and managed by the officially established advisory group. The characteristics of the CE are summarised. The results indicate that ninhydrin is a robust methodology. Unexpected negative outcomes have been outlined and discussed, followed by an overview of the knowledge that has been gained.     

COVID,crisis, and unordinary order: A critical analysis of Australia’s JobKeeper wage subsidy scheme as an exceptional measure

Carl Schmitt’s famous articulation of the relation between sovereignty and the exception emphasises not simply the basis for a suspension of the law in a state of emergency, but the role of the sovereign in deciding upon the existence of the ‘normal situation’, the ‘everyday frame of life’ which the law requires to function. Our pandemic times have included extreme biopolitical measures deployed to manage the health crisis, but also unprecedented political responses to regularise or stabilise the economic order. One example is Australia’s historic JobKeeper wage subsidy scheme. As law, it was given life by an executive power predicated on nationhood and enlivened by crisis. As policy, it was intended to help businesses retain workers through targeted, proportionate support. In reality, it also provided significant protections and even windfalls to corporations and their investors, leading to critiques of the scheme as corporate welfare. However, rather than highlighting deficiencies of the JobKeeper programme, these outcomes underscore its ultimate function. This article analyses the relationship between norm, exception, and order in the context of Australia’s flagship economic-policy response to the pandemic. First, by analysing the mutually constitutive relationship between norm and exception, employing the theories of Carl Schmitt and Giorgio Agamben. Second, by critically examining the legislative basis for JobKeeper, its political narrative and practical outcomes. Third, by demonstrating that the scheme, though an extraordinary departure from policy, can be understood as fundamentally a different and exceptional method to secure and reproduce our neoliberal corporate order in a state of exception.

     

Myriad Concerns: Indian Macro-Time Intervals (Yugas, Sandhyās and Kalpas) as Systems of Number

This article examines the structures of the epico-Purā?ic divisions of time (yugas/sandhyās/kalpas) and asks what is joined by the Purā?ic ages known as yugas or joinings. It concludes that these structures reflect a combining of three systems of number—Greek acrophonic, Babylonian sexagesimal and Hindu decimal— represented as divisions of time. Since most interpretations of these structures, particularly yugas, focus on questions of dharma and its decline over the various ages rather than on number, it asks in conclusion if there is any necessary relationship between number and dharma.     

Life Stress as Mediator of the Childhood Maltreatment – Intimate Partner Violence Link in Low-Income, African American Women

This study examined the relations between childhood maltreatment, daily life hassles, and intimate partner violence among low-income, suicidal, abused African American women (N = 208). Findings indicated a significant association between childhood maltreatment and intimate partner violence, such that women who experienced childhood maltreatment were more likely to experience intimate partner violence as adults than those who reported no childhood maltreatment history. Also, results from bootstrapping analyses revealed that daily life stressors mediated the link between childhood maltreatment and both physical and nonphysical forms of intimate partner violence. These findings highlight the importance of thoroughly assessing for a history of childhood maltreatment, current intimate partner violence, and the nature and extent of daily hassles when working with low-income African American women, as well as helping abused women with a history of childhood maltreatment to cope effectively with the daily life hassles that they encounter.     

“Jurisdictional Realization of Law” as Judicium: A Methodological Alternative,Beyond Deductive Application and Finalistic Decision

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a (normativistic-positivistic) syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism(s) of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy.

     

Street politics in Damascus: Kinship and other social categories as bases of political action, 1830–1841

The study examines popular politics in Damascus during the 1830s with a focus on kinship and other social categories that served as bases for political action. It is based on a close reading of one text, an anonymous Arabic chronicle known as ‘Historical Memoirs’ (Mudhakkirāt tārīkhiyya), which is analysed as a repertoire of contemporary social and political concepts. This analysis reveals an ideology of ‘localist’ resistance against the centralising state and its ‘loyalist’ allies in Damascus. Kinship played an important role in this struggle on the social plane (e.g. by using family networks for political ends) as well as on the cultural plane (e.g. through the use of kinship metaphors or through criticism of kinship ties in politics). It is concluded that the function of kinship in Damascene politics can only be understood in the context of other social categories such as factionalism, religious affiliation, class and ethnicity.     

Does residency matter? Local residency as a predictor of arrest

Prior studies show that a number of offender characteristics impact police officer use of discretion. Although there are exceptions, characteristics such as race and gender have been shown to influence decisions made by police officers with racial/ethnic minorities and men more likely to be arrested than their counterparts. Yet, much less is known about the impact of morphology, an important component from Black’s Behavior of Law, on enforcement decisions. Using 2014 state-wide data on Class ‘B’ arrests in Idaho, we examine the role of morphology, as operationalized by offender residency in the community in which the violation occurred, on the odds of a police officer affecting an arrest as opposed to writing a citation for the violation. Results of logistic regression models show that local residents are significantly less likely to experience an arrest than non-residents. Theoretical explanations and implications for these findings are offered.     

Lak?a?ā as a Creative Function of Language

When somebody speaks metaphorically, the primary meanings of their words cannot get semantically connected. Still metaphorical uses succeed in conveying the message of the speaker, since lak?a?ā, a meaning-generating faculty of language, yields the suitable secondary meanings. Ga?ge?a claims that lak?a?ā is a faculty of words themselves. One may argue: “Words have no such faculty. In these cases, the hearer uses observation-based inference. They have observed that sometimes competent speakers use the word w in order to mean s, when p, the primary meaning of w does not make any semantic sense. In all such cases, s is actually related to p. After having observed this, when the hearer hears the utterance of w, and realizes that w’s primary meaning p is semantically unfit for the sentence-meaning, they infer on the basis of their prior observation that ‘the competent speaker must mean s by uttering w’. Thus lak?a?ā becomes a success.” This apparently well-argued reduction does not stand the critical examination; neither in Ga?ge?a’s framework, nor even in the general theory of language. For one can compose and interpret potentially infinite novel sentences based on lak?a?ā while the observational inferences one can make are finite. Ga?ge?a says very clearly that as far as the secondary meaning is concerned, no prior observation is required. This paper will argue that not only does language yield secondary meanings through lak?a?ā, but it also restricts the use of secondary meanings; for one cannot mean just anything by saying something. Lak?a?ā is a creative function with infinite potential within the limits set up by the language faculty.