Marxism and the critique of criminal justice

Conclusion The purpose of this article was to consider the nature of the Marxist critique of criminal justice. My conclusions are, first, that the combination of Marx and retributivism is an opportunist one that does not take account of the significance of historical materialism not only as a critique of social relations, but also of the genesis of ideologies, including moral ideologies, from such relations. An analysis of the juridical form that justice assumes in bourgeois society, and its basis in exchange relations, shows the specifically historical nature of bourgeois justice in a way that the analysis merely of its functions cannot.Second, a study of the economic basis of capitalism as the unity of relations of exchange and production, shows the essentially formalistic nature of justice within capitalism, and from this analysis is derived the critique of justice in general, and criminal justice in particular. From this point of view, the important contradiction within retributivism between criminal justice and social injustice can be seen as an inevitable consequence of the contrast between the spheres of exchange and production. Exchange relations give rise to a juridical conception of justice at the same time as production relations render this conception formalistic. The result is that in capitalist society the demand for criminal justice is always and unavoidably associated with a deficiency in social justice. The dichotomy between criminal and social justice is a necessary feature of capitalist society, and since retributive criminal justice requires for its validity a combination of the two, the theory is forever doomed in its practical application to self-contradiction.I would like to thank Peter Cameron, Dean Clarke and Ian Taylor for reading and commenting on this paper. Of course they are not responsible for its contents.     

Sustainable economic development: A criminal justice challenge for the 21st century

The environmental challenges of the 21^st century require co-operation between criminal justice experts and economists. Three different economics perspectives are relevant for the discipline of criminal justice in general and for adressing environmental problems in particular: neo-classical econoics, political economics and the economics of sustainable development. Criminal justice pays a role in the effort to attain sustainable development because the limitations of market based decision making necessitate a role for law and regulation in addressing environmental degradation. Sustainable development itself is relevant to the general discussion of crime. Issues of sustainable development are already discussed in criminal justice literature. While criminal law has limitations as a tool against environmental crime, it will necessarily suplement the tools of the market and civil regulation in coping with environmental problems. The inherently multidisciplinary undertaking of sustainable development will be most effectively met if experts in both economics and criminal justice understand more of one another's fields. Suggestions for including the three perspectives of economics in the criminal justice curriculum are provided.     

论刑事法的历史分析

历史分析，作为法学重要的研究方法之一，对于刑事法研究具有积极意义。对中国当代刑事法进行历史分析，并非去发现所谓的“民族精神”，而是寻找刑事法律制度得以形成的脉络，以及在法制演进中的政治、经济和文化因素。在刑事法学研究中运用这种分析方法，具体表现为历史比较研究、历史的社会研究以及历史的价值研究。对中国刑事法发展作历史研究，应区分不同时代，并有目的性地进行研究，进而挖掘其中可为当代刑事法发展利用的有益因素。     

Lessons from the Third World for Understanding American Criminal Justice

This paper argues for and attempts to demonstrate the case for including materials related to the operation of Third World criminal justice in courses dealing with American criminal justice system. The author argues that an examination of the contexts and processes of criminal justice in Third World nations increases one's ability to understand and critique the history and operations of our criminal justice enterprises. The Third World context offers laboratories for testing assumptions about American criminal justice without the implicitly pervasive ideological overtones we come to accept unquestionably in our own system simply because it is the one in which we operate.

Within the context of poverty, “dual societies,” chronic political instability, the struggle for economic development, and colonialism, the Third World offers an opportunity to study the interaction and impact of law, politics, economics, social control, and social change on the development and operations of criminal justice. Using examples from the literature of anthropology, law and social change, and political and economic development, the author attempts to demonstrate the usefulness of this interdisciplinary approach and the Third World context in teaching about the criminal justice system.     

Teaching through the use of games and simulations

This paper describes the use of games and simulations in teaching criminal justice students and those in the related social sciences. The authors have utilized a two-week interim session (following the spring semester) to use this approach in illustrating a wide variety of concepts such as political power, conflict, cooperation and negotiation as applied to criminal justice and other governmental agencies. Two types of teaching tools--small group board games and large group simulations--have been utilized. While the interim class sessions run two and one-half hours each, many of the games and simulations are adaptable to shorter time periods or multiple class periods and, thus, are useful teaching devices for regular school terms¹.     

International Criminal Courts and Political Reconciliation

In A Moral Theory of Political Reconciliation, Colleen Murphy devotes a full chapter to arguing that international criminal trials make significant contributions to political reconciliation within post-conflict and transitional societies. While she is right to claim that these trials serve an important function, I take issue with her with respect to what that important function is. Whereas Murphy focuses on the contributions international criminal prosecutions might make to political reconciliation within the borders of transitional societies, I claim instead that their primary function is to restore order at the international level and to dispense justice. The aims of justice are not always consistent with the aims of reconciliation. Moreover, several features of international criminal trials should give us pause with respect even to how well, in fact, they manage to serve the ends of international justice.     

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.     

Long-term criminal justice response to human trafficking in south africa: an impossible mission

ABSTRACT

This article explores the propriety of long-term efforts of the South African criminal justice system in combating human trafficking. Though a crime of global dimension, human trafficking has been a reverberating issue of concern to the South African State. Steps have been taken by the State to address this menace, especially from the legal standpoint, and the enlistment of human trafficking among crimes that require an effective criminal justice approach to deal with; yet, the menace has persisted. From a broader doctoral study, using qualitative method, it was discovered (amongst others) that as currently structured, the South African criminal justice system cannot effect a long-term combating strategies against human trafficking. Findings also indicate that the solution to the precipitating factors that fuel the trade in human commodity lies outside the scope and mandate of the criminal justice system. The study further recommends that for an effective response, it is expedient for the State to first address the socio-economic, cultural and political nuances that fuel the trade, rather than mount impracticable pressure on its criminal justice institutions to perform an unrealistic task.     

Testing the Packer Theorem: The Efficiency of Florida’s Criminal Circuit Courts

Herbert Packer’s models of the criminal process are criminal justice theorems, often the foundation of student introduction to the field in introductory textbooks. To date, there is little empirical analysis of the conceptual foundations of the process-based models, namely that courts are more efficient through the utilization of plea bargains, while an increase in trials necessarily decreases efficiency. The present results reveal wide variability in Florida circuit criminal court efficiency within and between circuits from 2004/05 to 2010/11. Regression analysis revealed that the year over year difference in both plea bargain (β?=?.14) and trial percentage (β?=?.13) significantly predicted (p?<?.05) year over year changes in efficiency, but explained a small amount of the variance (R ²?=?.026) controlling for other factors (total model R ²?=?.58–.62). These results show there is more capacity for trials within the Florida courts, and an increase in trials does not negatively impact court efficiency as expected but that other factors are far more relevant in explaining changes in efficiency outcomes. Furthermore, the Packer “assembly line” analogy, a basic tenet of the criminal process, is not found: plea bargains do not strongly predict or explain court efficiency, with structures playing a greater role in court outcomes than the processes conceptualized by Packer. The application to courts and impact on criminal justice education are discussed.     

How Is Criminal Justice Related to the Rest of Justice?

Are principles of criminal justice derived from a broader conception of justice, or does criminal justice involve some of its own distinctive principles such that it is not—for example—an aspect of distributive justice? Examining considerations regarding luck and desert provides an illuminating approach to this issue. The notion of desert has largely been excised from a great deal of recent political theorizing, and in particular, it has been eliminated from many influential conceptions of distributive justice. It is widely held that the pervasiveness of luck renders desert inappropriate to contexts of distributive justice, and incompatible with the freedom and equality of persons in a just political community. Should considerations of desert also have a minimal role in criminal justice—where they seem to still be important? Are considerations of desert in the context of criminal justice consistent with persons being free and equal participants in a just political community? How are principles of criminal justice related to principles of distributive justice and political justice in an overall just society? Many scholars agree that criminal justice presupposes an adequately just society. Still, that leaves open just how criminal justice relates to justice overall. That is the present topic.     

The Shifting Sands of Punishment in China in the Era of “Harmonious Society”

This article about the politics of punishment in China today follows some of the political machinations involved in the development of a new policy called “Balancing Leniency and Severity.” It treats this new policy as an exemplar of how politics works in the Hu Jintao era to change the way crimes are addressed in judicial decision making. This paper underscores the important ways in which political ideology informs criminal justice policy and practice in China. It examines a number of stages of development within the last decade during which Balancing Leniency and Severity has emerged as a foundational criminal justice policy.     

THEORETICAL PERSPECTIVES FOR HISTORICAL ANALYSES

One of the most obvious deficiencies in the literature on the criminal justice system is reflected in the lack of research on the historical development of the police, courts, and corrections. Even more evident is the paucity of research which is theoretically or methodologically grounded. As a result of the failure of historians to specify their a priori assumptions, methodology, and theoretical perspective, it is difficult for consumers of the literature to appreciate how researchers have selectively sampled and interpreted historical events and arrived at their conclusions. This article addresses this problem by adapting and applying to historical research on the juvenile justice system some of the theoretical and methodological insights presented by Thomas S. Kuhn (1962) The Structure of Scientific Revolutions and George Ritzer (1975) Sociology: A Multiple Paradigm Science. The study focuses upon outlining the assumptions and methodology underlying three theoretical perspectives which have been consciously or unconsciously adopted by a majority of historical researchers: the march of progress, social context, and conflict perspectives. After outlining these perspectives, a selective review of the juvenile justice literature is offered in order to demonstrate how these orientations have been applied in interpreting the origin, development, operation, and impact of the juvenile court and juvenile reformatory. Finally, suggestions are offered which provide general guidelines for applying these perspectives to any aspect of the criminal justice system within an historical context.     

新自由主义对美英国家刑事法制的影响及反思

从一国或地区的政治经济体制来理解其刑事法制,可以以相对宏观的视角把握其刑事法制脉络。美国刑事法制自20世纪70年代以来发生了深刻变化,从刑事法制基本观念到具体实践都渗透强烈的报应主义色彩,而隐藏其后则是新自由主义思潮。美国刑事法制的转变也影响着英国等国家。对这一思潮进行研究,一方面可以对这些国家刑事法制过去半个世纪发展脉络进行整体把握,另一方面也为分析研究这些国家刑事法制提供了一个更具批判性的视角。     

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.     

POLITICAL CRIME, POLITICAL JUST1CE, AND POLITICAL PRISONERS

Few attempts have previously been made systematically to define or interrelate the concepts of political crime, political criminal, political justice, and political prisoner. To establish a more adequate conceptual base for research, political crime and political criminals are herein defined in terms of motiwtions underlying criminal acts, regardless of the nature of the acts themselves; political justice is defined in terms of the state's reaction to perceived threat; and political prisoners are defined as those incarcerated because of either political crime (politico1 criminals) or political justice (victims of repression). Dimensions for a taxonomy of political crime are suggested.     

The repentant defendant and the potential of international criminal justice

ABSTRACT

Repentant defendants are a more common feature of the international criminal trial than commonly thought, and offer interesting opportunities to conceptualize the possibility of restorative justice within what is otherwise a conventionally retributive framework. Repentance may arise at different stages of the trial and is an inherent part of the assessment at the plea bargain and sentencing stages. It must be understood as a particular performance from the accused, one that individualizes guilt and performs the sort of moral agency on which international criminal law is otherwise premised. Its force lies potentially in its power to break down some of the constitutive dichotomies of international criminal justice, including those between perpetrator/victim, international/domestic, and retributive/restorative justice. One needs to account, however, for the potential ambiguity of repentance and the fact that it may be subtly exonerating, as well as the fact that international criminal tribunals have reasons to encourage it that have nothing to do with restorative justice. Only if the sincerity of repentance can be ascertained and if it can be addressed to victims may the restorative potential of international criminal justice be realized.     

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”。     

Criminal justice history as a field of research: A review of the literature, 1960–1975

A review of recent criminal justice textbooks and standard reference sources indicated a lack of historical studies. Scholars in the United States have not investigated the historical roots of criminal justice and as a result the literature and curricula of criminal justice educational programs portray a narrow contemporary perspective. The author critically analyzes selected historical publications of the past decade and provides suggestions for further research.     

Dimensions of criminal justice policy: The Supreme Court,the Fourth Amendment and the trial court system

A full understanding of the role of the U.S. Supreme Court’s supervisory authority over the criminal justice process must recognize that the political and social environment affects local responses to Supreme Court directives. This paper reviews the development of Supreme Court Fourth Amendment decisions in which criminal court deliver justice. The authors suggest that future treatment of problems in Supreme Court’s supervisory role and the prospects of demands for Reform being generated from the larger political community.     

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.