Strict Liability’s Criminogenic Effect

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability.     

Is There a Crime Drop in Western Europe?

Combining data from police statistics and crime victim surveys, this article analyses the evolution of crime in Western Europe from 1988 to 2007. The results show that there is no general drop in crime. Property offences and homicide have been decreasing since the mid 1990s, while violent and drug offences have increased during the period under study. These trends highlight the limits of the explanations to the crime drop in the United States, which are based on the premise of a correlation in the evolution of all offences. The drop in property offences seems related to changes in the socioeconomic situation in Europe as well as to increases in security measures in households, and the reinforcement of private security. The increase in violent offences can be explained by the combination of several factors, including changes in youth’s free time provoked by the development of the Internet, changing demographics, and the rise of episodic heavy alcohol consumption and street gangs.     

Public-College Student-Athletes and Game-Time Anthem Protests: Is There a Need for a Constitutional-Analytical Audible?

National-anthem-related protests among NFL players have revealed complexities associated with symbolic counter-speech tied to American symbols of patriotism. For public-college officials and coaches, who are bound by the First Amendment, the handling of game-time anthem protests may reverberate beyond the court of public opinion. Because uniformed collegiate student-athletes occupy a constitutional limbo-land in which they are distinguishable both from members of the general adult population and their non-athlete student peers, the traditional framework for evaluating limits on their game-time political counter-speech may prove unwieldy. This article presents an alternative constitutional-analytical approach that contemplates the unique status of collegiate student-athletes and the nature of competitive teams. Within this potential framework, administrator-imposed limits on anthem protests would be reviewed strictly. Courts considering coach-imposed limits on anthem protests, however, might opt for a less rigid form of review that allows for a more direct balancing of interests.     

Can Strict Criminal Liability for Responsible Corporate Officers be Justified by the Duty to Use Extraordinary Care?

The responsible corporate officer (RCO) doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, not to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine.     

Theories of Rights: Is There a Third Way?

Some important recent articles, including one in this journal,have sought to devise theories of rights that can transcendthe longstanding debate between the Interest Theory and theWill Theory. The present essay argues that those efforts failand that the Interest Theory and the Will Theory withstand thecriticisms that have been levelled against them. To be sure,the criticisms have been valuable in that they have promptedthe amplification and clarification of the two dominant theoriesof rights; but their upshot has been to reveal the need forthe improvement, rather than the abandonment, of those theories.     

Is there a Need for a European Criminology?

Readers were invited in Issue 4, 2000 to give their comments on the subject of European criminology. The Editors also invited some scholars on a personal title. The comments, ranging from 1,200 to 2,000 words are presented in alphabetical order. The comments are written by: Rosemary Barberet, Josine Junger-Tas, Martin Killias, H.-J. Schneider, Alenka élih, Henrik Tham, Bas van Stokkom and Lode Walgrave. Together they offer a view on the ideas and different views on European criminology.     

Court Sentencing Patterns for Environmental Crimes: Is There a “Green” Gap in Punishment?

Objectives

This study examines sentencing patterns for environmental crimes and tests the assumption that “green” offenders receive more lenient treatment from criminal courts than non-environmental offenders.

Methods

We present two sets of analyses. First, we present an empirical portrait of environmental felony offenses convicted in a single state (Florida) over a fifteen-year period and the resulting criminal sanctions. Second, we use a precision matching analysis to assess whether environmental offenders receive more lenient treatment when compared to non-environmental offenders with the same characteristics and offense severity scores.

Results

Findings indicate that an overall small percentage of felony convictions in state courts stem from environmental crimes. We also find that punishments for environmental crimes are more lenient than sanctions assigned to comparable non-environmental offenses when the environmental crime is ecological, but that punishments are sometimes harsher when the environmental crime involves animals.

Conclusions

The findings provide general support for the argument that courts and other formal institutions of social control treat environmental crimes more leniently than non-environmental crimes. This paper also raises important questions about citizen and state actors’ perceptions of crimes against the environment and, more generally, about the ways in which theories of court sentencing behaviors apply to environmental crime sanctioning decisions.

     

Is China a safe haven for Asian Tigers?

This paper presents a number of noteworthy innovations that can be used to test the hedge and safe haven properties of Chinese stocks against stocks from four East Asian countries commonly referred to as the Asian Tigers. First and foremost, the hedge property of Chinese stocks was tested at different frequencies. Secondly, based on assertions of the Fractal Market Hypothesis, for the first time (to the best of our knowledge), turbulent periods in stock markets were identified by estimating the wavelet power spectra of stock returns. Thirdly, the safe haven property of stocks was analysed by estimating their coherence and phase angle during the identified turbulent periods. It is inferred that Chinese stocks can be used as both a weak hedge as well as weak safe haven against stocks of the Asian Tigers.     

Does Control Make a Difference? The Moral Foundations of Shareholder Liability for Corporate Wrongs

The doctrine of limited liability, as traditionally understood, prevents shareholders from being held personally liable for corporate wrongs. Several authors have recently argued that the doctrine should be modified to make some or all shareholders individually liable for torts committed by corporations in which they hold shares. This article distinguishes three types of argument that might provide a moral basis for shareholder liability in such cases. I contend that while these arguments support holding at least some shareholders liable for corporate torts, they fail to justify a general regime of unlimited pro rata shareholder liability. The level of control shareholders exercise over a company makes an important difference to their moral duties to compensate victims of corporate wrongdoing.     

Any Other Contribution? Ascribing Liability for Cover-Ups of International Crimes

As the International Criminal Court (the Court or ICC) continues to develop the parameters of the various modes of liability set out in Article 25(3) of the Rome Statute, recent developments raise questions as to whether the Court can consider participation in cover-ups or concealment of crimes as giving rise to individual criminal responsibility. It is only recently that international tribunals, and notably the International Criminal Tribunal for the Former Yugoslavia (ICTY), have turned to consider how international criminal law approaches responsibility for cover-ups or concealment of crimes. In reviewing how and why the ICTY has addressed individual criminal liability for engaging in cover-ups, and in light of the ICC’s Mbarushimana decision, the aim of this paper is to suggest how the ICC might consider such issues in future cases. Having demonstrated the necessity of international criminal law accounting for cover-ups, the paper will discuss how the jurisprudence, in toto, excludes the possibility of holding to account individuals who contribute to the cover up of international crimes, by whatever means, or however grave, unless they were acting on the premise of a prior agreement with the principals. By way of conclusion the paper will suggest that an expansive interpretation of Article 25(3)(d) of the Rome Statute may provide a means of addressing this gap.     

Is there a place for hair analysis in doping controls?

The actual antidoping control rules applied in sports (as established by the International Olympic Committee and the International Sport Federations) state that a positive case is chemically established by the unequivocal detection of a forbidden parent molecule and/or any of its metabolite(s) in urine, no matter the amounts which were administered and when the drug was taken. Screening is accomplished most of the time by using GC-MS procedures. These have been optimized to detect most if not all of the forbidden compounds which are put on a list. Recently, attempts have been made on scalp hair to demonstrate the value of this matrix as a possible means for differentiating between therapeutic use and doping abuse. In particular, GC-mass selective detector and GC-high resolution MS were successfully applied to treated animals and body-builders for anabolic agents (steroids and beta-2-agonists) at high sensitivity detection (low ng/g level). Naturally occurring molecules, like testosterone and its metabolites, could also be differentiated from their synthetic counterparts. Positive cases are more often challenged in courts and retrospectivity in time of the drug(s) intake is becoming an important issue for evaluating the responsibility of the person. This is can be based on hair analyses if the drugs have been taken at regular intervals. Stimulants and narcotics are often used in sports like drug of abuse in the ordinary social contexts. On the other hand, anabolic agents, when taken to improve the physical performances, follow complex regimens with the mixing of various formulas and dosages. Scalp hair references ranges for these as well as for endogenous substances still wait to be established statistically for competing, well-trained athletes. The incorporation rate into blond or gray hair is poorer than that of dark colored hair raising the question of individuals equality against the controls, a very important matter of concern for the sport's governing bodies. The frequency of hair cutting and short hair cuts necessary to gain speed in specific sports like swimming are other critical factors. On the other hands, irregular hair growth, associated with the washout effect through multiple washing and staining processes over expanded time intervals can cause concentrating or diluting effects. So far, a minority of prohibited substances could be detected in scalp hair with the sensitivity and specificity required in the context of the sport's activities. From the above, clear limitations of the usefulness of hair analysis in doping control analysis are obvious until a lot more data relevant to this particular field have been collected.     

Is a public reporting approach appropriate for nursing home care?

Publicizing quality information has been used as a quality improvement strategy in the acute care sector for more than a decade. Despite research showing mixed results of these efforts, publicly reporting quality measures is currently being pursued as a quality improvement strategy for nursing homes. Designed to empower consumers to make informed choices and to stimulate provider competition on quality, nursing home public reporting began in 1998 with the Nursing Home Compare Web site and has received greater emphasis in the 2002 Nursing Home Quality Initiative, both directed by the federal government. Focusing on the response of three key stakeholder groups across settings of care-consumers, providers, and purchasers-I identify several challenges that nursing home reporting must overcome to be successful. I conclude that publicly reporting quality measures for nursing homes will have a harder time promoting quality improvement than for acute care settings, where results have been disappointing thus far. In addition to the conceptual analysis, I evaluate whether the quality information reported on Nursing Home Compare had any impact on nursing home occupancy rates following its release. Using a pre/post-release design, I find that the effect of public reporting on nursing home occupancy rates has been minimal thus far. Although some estimates of effect are statistically significant and in the hypothesized direction, they all suggest very small effect sizes. It is unclear whether the absence of a larger reporting effect to date is specific to Nursing Home Compare or whether it inheres to the broader task of using quality information to promote change in the nursing home care sector.     

Export Cartels: Is there a need for Global Rules?

One of the reasons sometimes given in support of internationalcompetition rules is the need to curb export cartels. Exportcartels, however, are not necessarily competition or welfarereducing. They are just as likely to enhance competition andwelfare. The evidence reveals that opinions are quite divided.However, there is one constant: no country has a strong incentiveto ban export cartels unilaterally. The reason for this is thatmost of the adverse effects generated by the cartel are experiencedabroad, not locally. Therefore, if there is a case for curbingexport cartels, the alignment of incentives means that an internationalagreement is probably necessary. This article suggests one possiblearrangement.