Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer

This article examines two contrasting proposals for the reform of criminal appeals: the government's recent proposal that the guilty should no longer have their convictions quashed on 'technicalities'; and calls by campaigners for the Court of Appeal to consider innocence rather than the 'safety of the conviction,' together with their associated attempts to establish Innocence Projects in the UK. Despite the rhetorical power of 'innocence' as a campaigning tool, it is contended that to import such a standard into the legal system would be retrogressive and counter-productive, both as a safeguard against wrongful convictions and in protecting the integrity of the system. In order to be meaningful, due process protections must apply to all. The government's proposals attack this principle directly; innocence campaigners risk unwittingly assisting their endeavours.     

Miscarriages of Justice and the Government of the Criminal Justice System: An Alternative Perspective on the Production and Deployment of Counter-Discourse

This article confronts a perennial question raised by critical criminologists, namely, what part do critical counter-discourses play in the exercise of dominant forms of power in the sphere of criminal justice? In specific terms, it analyses some of the key sources of critical socio-legal counter-discourse that were produced and deployed in response to the most recent governmental review of the criminal justice system on the problem of miscarriages of justice in England and Wales. In so doing, it draws from Foucault’s theses on power, resistance and governmentality and suggests an alternative reading of the relations of power and the role and rationality of governmental intervention in the legislative framework of the criminal justice system. In light of this, it is argued that the reform of the criminal justice system should not only or merely be viewed as a ‘damage limitation exercise’ by a repressive state attempting to ‘betray’ the public to retain or reproduce its power. On the contrary, reform of the criminal justice system might, also, fruitfully be seen as part of a process that is initiated when the governmental conditions are right; a process which can, also, present opportunities to achieve progressive reforms.     

Public Support for Preventive/Corrective Remedies Against Miscarriages of Justice in Capital Cases

The present study examines public beliefs of Florida citizens about the prevalence of miscarriages of justice in their state and their level of support for various proposed remedies. The study also examines various correlates of punishment beliefs and death penalty opinions. Using a self-administered survey of venire persons called to jury duty, this study found that the public believes that the prevalence of miscarriages of justice in capital cases is quite high. The public is supportive of nearly all of the proposed remedies measured and they are willing to pay more taxes to support the implementation of such proposals. At the same time, respondents report feeling that the officials responsible for such miscarriages of justice should be severely punished. Importantly, the results show powerful evidence of broad societal consensus on each of these issues. Legal and criminal justice policy implications of these findings are offered.     

关于公平的国家赔偿的思考

国家赔偿法不能单从公平的角度理解,在大多数时候它涉及再分配的效率问题。在中国,完善国家赔偿制度,必须防止两种极端:一是仍然有传统官本位思想作祟,不重视国家赔偿的意义,将国家赔偿视为不得已的应付之举,表现为条件过于苛刻和繁琐;二是过度强调个案的绝对公平,将国家与公民个人权利对立化,表现为条件过于宽泛理想化和条文原则化,不具有可操作性。本文从国家赔偿法的价值取向出发,深入分析了归责原则、举证责任、损害赔偿范围、确认程序等方面存在的问题,并提出可行的修改建议。     

Prelapsarian State: Forgiveness and Reconciliation in Transitional Justice

Since South Africa's Truth and Reconciliation Commission (TRC), 'reconciliation' is now an authoritative discourse governing political transition. Reconciliation governs the 'moral reordering' of national communities in the wake of conflict and transition to more democratic regimes by enquiring into, and attempting to address, past gross violations of human rights perpetrated, in the main, against civilian populations by the state and its agents. Reconciliation eschews retributive justice in favour of 'restorative' modes of 'dealing with the past', and has come, broadly, to be institutionalised by the truth commission. South Africa's TRC animated theological discourses of forgiveness and Christian reconciliation in order to legitimise and endow with moral resonance the project of transitional justice. This article enquires into the political effects of such an animation, and investigates the performance of forgiveness and reconciliation as metaphor and narrative.     

Transformation: the Progression of Immigration Petitions for Transgender Spouses

U.S. citizens who marry foreign nationals may petition for their spouses so that the couple can reside permanently together in the United States. The guidelines set forth in the U.S. Citizenship and Immigration Services Adjudicator's Field Manual provide guidance to immigration officials for determining whether to grant or deny spousal petitions. Previously, the Adjudicator's Field Manual imposed a requirement that transgender individuals undergo costly and dangerous sex reassignment surgery in order to qualify as married for the purposes of a spousal petition. However, revisions to the Adjudicator's Field Manual issued in April 2012 provide transgender binational couples the opportunity to remain together in the United States without forcing one partner to undergo sex reassignment surgery. Given the history of discrimination against transgender individuals under U.S. immigration law, these revisions are a significant step in equality for transgender couples. Although these revisions provide many transgender binational couples with a means to remain together in the United States, this Note proposes that, to continue on the path toward equality for transgender couples, special guidelines should not be applied to marriages involving transgender partners if their marriage is deemed a valid heterosexual marriage in the state where solemnized. The goals of U.S. immigration law and compliance with the federal definition of marriage can be achieved without implementing individualized guidelines for transgender binational couples.

Key Points for the Family Court Community:
• Transgender spouses of a binational couple should not be subjected to additional guidelines when submitting spousal petitions that, if granted, would afford the couple the opportunity to reside together in the United States
• Transgender individuals should not be subjected to disparate treatment solely because the U.S. Citizenship and Immigration Services seeks to enforce discriminatory provisions of the Defense of Marriage Act
• A marriage should be recognized by immigration law if it is a valid marriage under the law of the state where the marriage was celebrated
• In order to achieve U.S. immigration law's mission of family unification, nontraditional couples should be afforded the same opportunity to remain together in the United States without additional scrutiny

     

Distributive Justice and Attitudes Toward the Welfare State

Current debates concerning the viability of the welfare state evoke the question of the social bases of support of the welfare state. Past research has documented fairly consistent relationships between sociodemographic characteristics and attitudes toward welfare policies. Yet, the nature of these relationships is not well understood. In the paper we argue that the level of support for the welfare state is largely determined by the principles of distributive justice espoused by individuals as well as their images of society. We develop a theoretical framework, which outlines the structural relationship between social attributes, principles of justice, perceived conflict, and support for the welfare state. Using data from a recent population survey on the legitimation of inequality, conducted in Israel in 1999 (N = 1057), we test a number of hypotheses. For the empirical analysis we use structural equation modeling with multiple indicators. Our findings reveal substantial support for policies aimed at reducing inequality. At the same time we find strong support for rewards according to merit and unequal earnings distribution. The impact of social attributes on attitudes toward the welfare state is partially mediated by the justice principles and images of society.     

Discretionary Justice: Decision Making in a State Juvenile Parole Board

The literature in Criminal Justice is replete with commentary on both the virtues and injustices associated with adult parole board decision-making. There has been far less attention paid to juvenile parole boards in part because so few of them exist. Institutional release decisions in most states still remain the purview of juvenile institutional staff members. This paper examines parole Authority decision-making in a citizen-dominated state juvenile parole board. The paper focuses on the conduct of hearings, dispositional guidelines, criteria used by board members in decision-making and the advocacy role of parole officers and institutional staff. The influence of deinstitutionalization and least restrictive policies on parole Authority decision making is also discussed. During recent years, the literature in criminal justice has become replete with commentary on the virtues and injustices associated with parole board decision-making. Consequently, many questions have been raised about disparate sentences, the criteria used by parole boards in making decisions, unstructured discretion, and the pressing need for guidelines and statistically accurate parole prediction instruments. The intent of this paper is to examine parole decision-making in a state juvenile parole board where individualized treatment and rehabilitation have been long standing goals. The paper focuses upon the criteria used by board members in decision-making, the conduct of hearings, the guideline system used to determine a recommended length of confinement and the advocacy role of parole officers and institutional staff. The influence of deinstitutionalization and least restrictive policies on parole board decision-making is also discussed. The author is presently completing the second year of a two-year appointment as a member of the Parole Authority under discussion. Since December, 1983, the author has continuously observed and participated in approximately 300 individual parole hearings over thirty-seven hearing days.