Compassion can be cruel: Durkheim on sympathy and punishment

Emile Durkheim's perspective on punishment has been examined in considerable detail, but criminologists still neglect one dimension of his perspective: his account of the causal relationship between “sentiments of human sympathy” and the intensity of criminal punishment. Unlike conventional accounts, which propose a negative relationship between these variables, Durkheim argued that there are conditions under which the relationship is positive. According to Durkheim, increments in feelings of compassion for humans in general can heighten public outrage to acts of “human criminality” and, for this reason, can intensify the punitive response to such crimes. In this article, Durkheim's account of this relationship is abstracted from his theory of penal evolution and is revised to improve its plausibility and temper its problematic implications. It is concluded that his account represents another irony of his work which warrants attention, and which may further our understanding of the persistence of both imprisonment and punitive attitudes.     

The German “Wutbürger”: How Justice Sensitivity Accounts for Individual Differences in Political Engagement

Perceived injustice can trigger strong emotional reactions and motivate political protest. Although there is vast empirical evidence for this chain of reactions, we know little about individual differences in how perceived injustice can motivate people to engage in political actions. In a survey study with 1,005 German participants, we investigated how justice sensitivity as a personality disposition accounts for individual differences in political engagement. Regression analyses revealed that justice sensitivity from an observer perspective promotes political engagement, whereas justice sensitivity from a victim perspective is not related to political engagement . In the concrete case of a political decision regarding the public transport project “Stuttgart 21” in Germany, our data indicated that perceived procedural injustice of the decision process and moral outrage mediated the relation of justice sensitivity from an observer perspective and political protest. The present findings are in line with research on the behavioral outcomes of justice sensitivity and contribute to the understanding of individual differences in political engagement and its underlying motivational processes.     

Outsiders and justice consciousness

The foundations of my justice consciousness lie in two books that share the name “outsiders.” I was introduced to S.E. Hinton's novel before I was a teenager and it was my first real contact with the “Greasers,” the “Socs,” and a world of juvenile delinquency divided by social class. Written by a 16‐year‐old girl around the time I was born, I think it was this book that initially sparked my fascination with juvenile delinquency and the study of crime. I pursued this interest in college and became concerned with inequality and the ways in which our social surroundings shape our choices and our life chances. Reading Howard S. Becker's classic statement of labeling theory in his version of Outsiders changed my perspective again and I have never looked at the world in quite the same way since.     

Perpetuating myths of women as false complainants in rape cases in India: culture V. The law

ABSTRACT

Despite public outrage over our global “rape culture,” sexual offences continue to be characterised by low levels of reporting, prosecution, and conviction in many countries. Attrition rates for sexual assault internationally, although varying in pattern, are consistently high. As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence against Women (DEVAW), the Indian Government acknowledges the need to afford better protection to victims of gender violence. Assessing the effect of rape law reform in India, using crime statistics and a survey of recent judgments from the Delhi District Courts, the author argues that the legislature has failed systematically to address the many injustices experienced by women who allege rape. The Indian Parliament responding to the moral panic generated by the Delhi gang rape case with knee-jerk reforms, focused mainly on increasing penalties, maintaining an outmoded view of rape as a crime against morality rather than as a violation of gender rights and human rights. By closely investigating the sociocultural context in which sexual crimes against women occur in India, the author reveals that India’s “cultural” arguments for rejecting further reform (such as repeal of the marital rape immunity) are merely entrenched gender biases, bearing strong parallels to nineteenth century English common law perceptions of women who allege rape as a class of false complainants.     

Reflections on Punishment from a Global Perspective: An Exploration of Chehtman’s The Philosophical Foundations of Extraterritorial Punishment

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened.     

The Prisoner's Perspective: A Needed View in Policy Formulation

The need for soliciting attitudes of convicted adult criminals towards the public system of criminal justice remains a neglected area of study. To the exclusion of the “prisoner's perspective”, criminological thought has relied extensively and, at times, exclusively on traditional criminological sources, public opinion polls and simulation studies, for relevant information regarding the criminal justice system. This paper seeks to break the cabal of silence by contending that the “prisoner's perspective” must be a requisite in any effort directed at making better decisions. The relationship between attitudes and behaviour, the sense of participation, the implementation of sound business practices, and the adherence to democratic principles are offered as possible rationales for the acceptance of the “prisoner's perspective”. It certainly cannot be suggested that the majority of ills confronting the criminal justice system are due to the non-recognition of the prisoner; however, unilateral and archaic policy construction and continued bypassing of the “prisoner's perspective” can serve only to harden the apparent resentment and contempt for a criminal justice system predicated on brass-bound policy ideals.     

Estimating wrongful convictions

Although numerous cases of wrongful convictions have been documented in the literature and in the media, criminologists have yet to devise a methodology for estimating the extent of such errors in the criminal justice system. I explore several methodologies with this purpose in mind, including the use of official data, inmates' self-reports, and case study approaches. Specifically, I use court-ordered discharges from imprisonment as a basis for measuring official error. In addition, I employ data from the RAND inmate surveys to estimate the extent of convicted offenders who deny their commitment offenses. Studies that attempt to catalogue individual wrongful convictions also serve as a basis for estimating false positive errors. Each methodology has its own limitations, but by employing multiple measures and approaches, I make possible an estimate of the “dark figure” of wrongful convictions.     

Measuring Procedural Justice in Police-Citizen Encounters

Procedural justice has dominated recent discussions of police interactions with the public. It has mostly been measured from the perspective of citizens (using surveys or interviews), but several important questions about predictors and outcomes of fair police treatment are best answered using direct observations of police-citizen interactions. Building on prior observational studies, we develop and validate an instrument for measuring procedural justice as it is exercised by the police in the natural setting of their encounters with the public. In doing so, we adopt a “formative” rather than the common “reflective” approach, based on the assumption that specific behaviors that make up procedural justice do not reflect a single underlying construct but rather form one. We justify this approach and validate our instrument accordingly. We also discuss the implications of our measurement for future research on procedural justice in police behavior.     

Social support as an organizing concept for criminology: Presidential address to the academy of criminal justice sciences

Although “social support” is present as a theme in many criminological writings, it has not been identified explicitly as a concept capable of organizing theory and research in criminology. Drawing on existing criminological and related writings, this address derives a series of propositions that form the foundation, in a preliminary way, for the “social support paradigm” of the study of crime and control. The overriding contention is that whether social support is delivered through government social programs, communities, social networks, families, interpersonal relations, or agents of the criminal justice system, it reduces criminal involvement. Further, I contend that insofar as the social support paradigm proves to be “Good Criminology”—establishing that nonsupportive policies and conditions are criminogenic—it can provide grounds for creating a more supportive, “Good Society.”     

Promoting a culture of fairness: police training,procedural justice,and compliance

Objectives

Academics and practitioners alike are concerned about the potential “double-edged sword” of procedural justice. In the organizational context, procedural justice is expected to increase compliance with supervisors. However, blind, unthinking, or “hard” compliance with supervisors, may lead to anti-organizational behavior and misconduct. The present study examines the moderating effect of a police recruit cultural training program on the relationship between procedural justice and compliance with police supervisors. We expect that providing cultural training will moderate the relationship between procedural justice and “hard” compliance.

Methods

Participants were police recruits at the Queensland Police Academy who were randomly assigned to an experimental (Voice 4 Values) or control condition (business-as-usual training) upon entry into the academy. Recruits in both groups were surveyed pre- and post- training to capture perceptions of procedural justice and compliance with supervisors.

Results

Results suggest that procedural justice mattered less for predicting “hard” or unthinking compliance among the recruits who received the Voice 4 Values cultural training package, compared to those who did not receive the training.

Conclusions

We conclude that while procedural justice may be of interest to policing organizations, it is important that it is not used as a tool to encourage unthinking compliance. We find cultural training reduces the effect of procedural justice on unthinking or “hard” compliance.

     

The Human Side of COVID‐19

The COVID‐19 pandemic has had, and continues to have, a broad, deep, and pervasive impact on our lives, our work, and how our justice system functions. While it is easy to contemplate the “system” as a massive behemoth that is impervious, impersonal, and impenetrable, the truth is that the “system” is made up of people. The men and women whose work is the building blocks of the justice system are individuals, each with their own narrative, experience, perspective, and role in the administration of justice. To understand the system and the impact of COVID‐19, it is essential to understand the stories of those who work in the system. This article presents the individual and human stories of four professionals whose professional lives are a part of the justice system. Each of these professionals tells their personal story of COVID‐19 and reflects on how the pandemic affected them and their approach to the work that they do.     

孔子“义利”观与现代法治和谐理念

孔子思想是第一次文化轴心时代人类思想的伟大创造,儒家社会理想的本原是“和谐”。孔子纳“仁”入“礼”,希望通过体现以民为本的社会正义观的“礼法”体系去整合社会,最终实现社会和谐的目标。在孔子的利、义观中,个人之“利”与个人之“义”并不相互冲突。孔子的“义利”观体现了法律的利益调控功能与正义价值的和谐统一,与和谐社会的法治理念有契合性。孔子思想中所体现的“利”与“义”的和谐统一观,对今天以社会和谐为目标的法治建设具有重要的启示作用。     

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”。     

Rorschach Tests,Pluralism, and Hopes for the Future: A Response to the Responses

In this essay, I address some of the concerns raised by contributors to the Symposium on Invitation to Law & Society: An Introduction to the Study of Real Law. I argue that law and society scholarship focusing on race increasingly offers some of our field's best empirical analyses of the interpenetration of law and society; I emphasize the importance of the methodological and theoretical diversity that characterizes our fragmented field, arguing that our pluralism is one of our greatest strengths; I clarify my intended meaning of the term “real law” as I use it in the book's subtitle, as a way to underscore the socially constituted quality of all law; I attempt to rescue the reputation of dialectics from charges of “relativism”; and I reiterate my appreciation for our field's engagement with questions of social justice that has characterized it since its inception. In the second half of the essay, I briefly describe my current prison research and offer some thoughts for the future of our field.     

Transgression and Standard Theories: Contributions Toward Penal Abolition

In this paper I propose a transgression theory and a standard theory toward penal abolition. I argue that given the ubiquity of “crime” in human relationships, to speak of “criminal behavior” as deviant nullifies the concept deviance (abnormal, out of the ordinary, etc.). After demonstrating that empirically the opposite is the case, I argue for a transgression theory (that most human beings regularly act in ways that transgress the norms and laws they establish) and propose a standard theory (that human beings are both maintainers and transgressors of the social orders they establish). My paper challenges the foundational language (constructions) of “criminal justice” logic that ignore the continuity of the past in the present (white supremacy, neocolonialism, racial capitalism, and gendering enslavement), and that fortify discourse and practice from recognizing, eliminating and standing accountable by rectifying centuries of white privilege, heteronormativity, and the oppression of nonwhite bodies.     

The politics of race and juvenile justice: The “due process revolution” and the conservative reaction

Through the prism of race, this article analyzes the social structural and political context of juvenile justice law reforms over the past half century. Throughout the 1950s and 1960s, the Supreme Court imposed national legal and equality norms on recalcitrant southern states that still adhered to a segregated Jim Crow legal regime, and these norms provided the impetus for the Supreme Court's juvenile court “due process” decisions in the 1960s. The article then analyzes sociological, criminological, racial factors, media coverage, and political dynamics of the 1970s and 1980s that contributed to the “get tough” legislative reformulation of juvenile justice policies in the 1990s. During this period, conservative Republican politicians pursued a “southern strategy,” used crime as a code word for race for electoral advantage, and advocated “get tough” policies, which led to punitive changes in juvenile justice laws and practices and have had a disproportionate impact on racial minorities.     

Pressing for Sentence? An Examination of the New Zealand Crown Prosecutor’s Role in Sentencing

Prosecutors are among the most powerful actors in any criminal justice system. Their exercise of discretion, however, has not been subjected to the same level of public and empirical scrutiny as other parts of the criminal justice system. To deepen understanding, I empirically explore for the first time the form, function and limits of the New Zealand Crown Prosecutor’s role at the sentencing stage of the criminal justice process. Semi-structured interviews of a non-representative sample of ten Crown Prosecutors are analysed using Hawkins’ framework of “surround”, “field” and “frame”. Findings suggest that whilst New Zealand’s regime shares history, principles, and structural features with English and Australian regimes, it goes further to permit Crown Prosecutors a more assertive role in sentencing. In the ‘surround’, populist and managerial pressures create frustration, strain, and concern. Changes to funding models suggest the potential for unjust sentencing outcomes has increased. The “surround” also intrudes upon and transforms decision-making “frames”. The opinions and presence of stakeholders influences decisions and practices at office and individual levels. Justice may be reactive, forward-looking, or negotiated depending on the particular mix of individuals involved – something accentuated by the regime’s privatised and decentralised form. Findings also suggest that Crown Prosecutors “frame” their role in occupational terms. The lack of interest of universities, professional bodies, and law and policy-makers in offering or requiring prosecutorial training before entry to the role is influential. This renders decision-making more susceptible to pressures in the “surround” and “field”, and increases variation in decision-making “frames”.     

The Use of the Biblical Oath and Its Development

The use of the oath in Jewish law reflects the religious nature of this system of law: in case a litigant cannot receive justice from the human judges s/he is entitled to call on God by swearing an oath. I begin this survey of the use of oaths in Jewish law with a discussion of the nature of “swearing an oath” based on biblical stories and biblical rules that regulate the use of oaths outside court. I then focus on the use of the oath in court; I survey the domain of circumstances in which an oath is accepted by Jewish law as evidence according to the Bible, the Mishna, Gemara, and codifications. Finally, I exemplify how the oath is used in practice in the 20th century by one case from Rabbi Saul Ibn Dannan’s responsa book “Hagam Shaul”.