Penal ideology, sentencing and the legitimacy of trial justice

The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the ‘rule of law’. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of ‘justice’ in sociological accounts of the ‘reality’ of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial‘s ‘relevant audience’. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived ‘legitimacy’ of international trial justice.     

The Legitimacy of Judicial Responses to Moral Panic: Perceived vs. Normative Legitimacy

In some instances, the criminal justice system is affected by a moral panic; that is, by an exaggerated social reaction to an assumed threat to moral values. When influenced by moral panic, courts demonize defendants and aggravate punishments. Are such responses legitimate? This article argues that by contrast to legitimate condemnation of criminal conduct, demonizing defendants ought never be legitimate. The legitimacy of aggravating punishment requires distinguishing between the sociological concept of legitimacy (“perceived legitimacy”) and the moral concept (“normative legitimacy”). Aggravation of punishment in response to moral panic might be perceived as legitimate since it expresses public perceptions about the severity of the threat to a social value, even when these perceptions are exaggerated; however, punishments that are proportionate to such a perceived, exaggerated, threat to a social value are unjust and unfair, and therefore are normatively illegitimate. When the panic subsides, courts tend to return to lower levels of punishment. The subsidence of the panic enables one to realize that a gap between perceived and normative legitimacy has been created during the panic. Should and can the gap be bridged retroactively in order to gain full legitimacy? One way to bridge the gap is to grant clemency that will reduce the punishment of defendants whose sentences were exaggerated unduly during the panic. The article proposes a more radical mechanism that allows for sentence re-evaluation in cases of moral panic.     

The truth and the trial: victim participation,restorative justice,and the International Criminal Court

In the field of international criminal justice, the international criminal court (ICC) has been lauded for its integration of victim participants into its legal proceedings. In particular, the ICC’s framework of victim participation has been understood to figure as a balance between retributive and restorative justice as it enables the actual voices of the victims to be heard. However, there has been little research that considers how victim participation works in practice as a form of truth-telling. In order to begin to address this gap, the integration of the ‘voices of the victims’ into the proceedings and outcome of The Prosecutor v. Thomas Lubanga Dyilo is explored. The forms of harms and experiences that comprise the truth of the events under adjudication put forward by the victim participants are considered, and then how the truth-telling functions of the ICC represent these states of injury. While the ICC’s legal proceedings enable victims to speak of their harms and experiences, their ‘voices’ are largely absent from its judgment. To address this issue, the ICC needs to develop and maintain a level of ‘restorative justice coherence’ to manage victims’ expectations of its justice approaches.     

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.     

刑事附带民事诉讼制度的思考与重新构建

我国刑事附带民事诉讼制度的设计遵循的是＂公权优于私权＂、＂效率优于公正＂的指导思想,因而造成了附带民事诉讼缺乏应有的独立性,在司法实践中成为刑事诉讼附庸的后果,偏离了设立这一制度的目的。本文指出了附带民事诉讼制度在受案范围、请求赔偿范围、诉讼证明标准、审理期限、裁判结果公正、保障执行机制等方面存在的问题和局限,进而通过确立＂在公权有限优先的前提下,最大限度保护私权＂、＂在首先保证公正的前提下兼顾效率＂的理念,以完善附带民事诉讼相关制度。     

Exploring the relationship between sentencing and the legitimacy of trial justice

This paper argues that recent sustained criticism of judicial sentencing in England and Wales reflects a much deeper malaise afflicting the legitimacy of punishment in the late post-modern era. It suggests that this phenomenon not only threatens the liberal-consensus view of the judiciary as pivotal to the rule of law, but also undermines the rationality which underpins conventional paradigms of criminal justice more generally. The paper goes on to argue that there are important lessons to be learned from engaging with the debates about punishment and sentencing which are taking place on the international stage, suggesting that the crisis in domestic sentencing is really symptomatic of a more fundamental crisis in penal legitimacy affecting the whole of civil society; one that touches upon the role of punishment in the governance of so-called democratic states. The paper concludes that the time may have come to modify the predominant neo-liberal paradigm prevalent in western democracies by developing notions of punishment and sentencing as relational contexts which provide meaningful links between trial outcomes and aspirations for justice.     

‘If I Would Stay Alive,I Would Be Their Voice’: On the Legitimacy of International People's Tribunals

In recent years there has been a proliferation of People's Tribunals (PTs), promising to address atrocities that have fallen through the net of a statist international legal order. However, the status of such informal tribunals has remained controversial in both literature and practice. The dominant view has been that PTs simply lack legitimate authority. Positing that, in the language game of legitimacy, PTs are put on a perpetual argumentative backfoot, this article examines aspects of their input, process and output legitimacy. It is argued that the right of victims-survivors to be heard reigns supreme and it is in upholding that right that the authority of PTs is legitimised. In the current state of international justice, PTs constitute indispensable, quasi-judicial institutions that bridge gaps in access to justice, challenge official narratives (or silences) about atrocities and, potentially, open up new avenues towards justice and recognition.     

Why are Forest Owners Satisfied with Forest Policy Decisions? Legitimacy,Procedural Justice,and Perceived Uncertainty

The perceptions of 460 Finnish forest owners regarding national forest policy were examined with a questionnaire measuring institutional legitimacy, procedural justice, perceived uncertainty, and satisfaction with decisions. Research hypotheses, which were derived from the group-value theory and the system justification theory, were tested. The results showed that high institutional legitimacy reduced the effect of procedural justice on the satisfaction with political decisions. Procedural justice predicted the acceptance of decisions only when institutional legitimacy was low. Moreover, perceived uncertainty increased the perception of legitimacy. The implications of these findings for a social psychological theory of legitimacy and policymaking are briefly discussed.     

Making space for restorative justice in criminal justice and criminology curricula and courses

Restorative justice, rooted in the practices of indigenous people across the globe, has grown exponentially in both theory and practice since its beginnings in Canada in the 1970s. Restorative justice has influenced the interactions between offenders and victims, helped community members address crime and develop self-efficacy, and changed the way some countries rebuild after a history of oppression. Despite these restorative justice influenced changes, many criminology and criminal justice programs pay scant attention to restorative justice in curricula. This paper will examine ways to include restorative justice in criminal justice and criminology curriculum and the challenges involved in the process. The paper will then examine how the Law and Justice Department at Central Washington University has incrementally added restorative justice components to its curriculum, culminating most recently with the addition of a Community and Social Justice course. The paper will conclude with several examples of classroom activities and assignments that have helped connect students with the theory and practice of restorative justice.     

论国际法的正当性

国际法的正当性关注国际法本身的正义问题。现代国际法正日益面临正当性危机。危机主要表现在国际组织的结构和国家权限、国际法规则的实施与适用、国际民主的程度的减弱等方面。评估正当性不仅涉及到价值的判断、解构,而且更需要论证价值的重新建立。正当性理论实际上是正义理论在国际法中的应用,但对正当性的论证不能将其用作违法行为的正当化辩解。     

In their own eyes: an empirical examination of police self-legitimacy

In their paper Beyond Procedural Justice, Bottoms and Tankebe specified two interrelated dimensions of legitimacy: audience legitimacy and self-legitimacy. Criminologists have given considerable attention to audience legitimacy, but police officers’ belief in their own legitimacy remains understudied. This paper extends Bottoms and Tankebe’s theory and reports findings on some of its key propositions, using survey data from a UK police force. Three key findings emerge. First, contrary to previous studies, feelings of recognition by supervisors and clientele did not predict self-legitimacy; self-legitimacy was found to depend on feelings of peer recognition and acceptance. Second, self-legitimacy predicted officers’ commitment to external procedural justice but not their moral orientations towards crime victims. Finally, perceived police effectiveness but not supervisor recognition – that is, internal procedural justice – was the key predictor both of external procedural justice and of normative orientations towards crime victims. The implications of these findings are discussed.     

Some reflections on the legitimacy of international trial justice

This paper addresses a number of interrelated conceptual difficulties that impact adversely on the ability of international criminal trials to deliver outcomes perceived as legitimate by victims and communities in post-conflict states. It begins by exploring the extent to which those moral justifications for punishment espoused by international courts are instrumental in marginalizing the aspirations for justice of victims and victim communities, and suggests how a greater appreciation of the sociological context of punishing international crimes can contribute towards an improved understanding of normative practice. The paper then examines the relationship between perceptions of international crime and punishment, and the broader issue of whether international criminal law provides an appropriate normative structure for giving effect to those universal humanitarian values concerned with punishment in an increasingly pluralistic world. Finally, the paper considers how the theory and practice of punishing international crimes can more effectively satisfy both local and global aspirations for post-conflict justice through enhancing the transformative capacity of international criminal trials.     

Informal Social Controls,Procedural Justice and Perceived Police Legitimacy: Do Social Bonds Influence Evaluations of Police Legitimacy?

Although procedural justice has been a key predictor of police legitimacy, recent findings illustrate that other factors influence this outcome (i.e., low self-control and ethnic identity). However, no research to date has evaluated whether individual-level informal social controls impact police legitimacy evaluations. Survey data are used to examine the influence of parental attachment, school commitment and procedural justice on perceived police legitimacy. While procedural justice significantly predicted legitimacy evaluations, no significant relationships were observed between parental attachment, school commitment and police legitimacy. The effects of procedural justice on legitimacy assessments, however, were modestly significantly moderated by parental attachment and school commitment. To maintain legitimacy, police officers should interact with citizens in procedurally fair manners. These results should also be of value concerning how parents and schools legally socialize adolescents.     

困境与抉择：我国引入刑事传闻规则的法理论析

我国当前刑事庭审中存在着诸多弊端，与传闻证据不受限制的使用非常有关，应当引入刑事传闻规则。这不仅有利于发现案件真实，而且有利于保障被告人接受公正审判的权利，特别是对质询问权，实现程序公正，还有助于完善证据制度，实现诉讼的效率。而且，引入刑事传闻规则还具有来自现行制度及法律实践需求的可行性，所谓中国引入传闻规则不可行的观点是站不住脚的。     

The effect of low self-control on perceived police legitimacy

Objective

The process-based model has influenced policing research for a number of years, but the role of individual differences on procedural justice judgments and perceived police legitimacy has received limited attention. The current study fills a void in the literature by examining the effect of low self-control on individuals’ procedural justice judgments and perceptions of police legitimacy.

Materials and Methods

The study uses a sample of young adults and estimates a series of OLS regression models to determine the effect of low self-control on the process-based model of policing.

Results

The findings demonstrate that low self-control is associated with unfavorable procedural justice judgments. In turn, procedural justice mediates the effect of low self-control on perceived police legitimacy. Low self-control, however, is also shown to condition the effect of procedural justice on legitimacy. Specifically, the effect of procedural justice on legitimacy becomes weaker with reduced levels of self-control.

Conclusions

These findings suggest that studies should account for self-control in process-based policing research and police policy should consider the impact of individual differences when implementing process-based strategies.     

Public Perceptions of the Legitimacy of the Law and Legal Authorities: Evidence from the Caribbean

Research on procedural justice and legitimacy has expanded greatly across the social sciences in recent years. The process‐based model of regulation, which links people's assessments of procedural justice and legitimacy to their compliance with the law and legal authorities, has become particularly influential in criminology and sociolegal studies. A review of the previous research on perceived legitimacy highlights two important features. First, legitimacy has been conceptualized and measured in many different ways. Second, most of the research on legitimacy has focused on only a handful of developed nations. Using survey data from Trinidad and Tobago, this article examines the conceptualization and measurement of the perceived legitimacy of the law and legal authorities. The findings indicate that some of the prominent conceptual and measurement models used in previous research are not empirically valid in the Trinidadian context. The implications of the results for conceptualization, theory, and future research are discussed.     

非法证据排除规则的可操作性问题探讨

非法证据排除规则是刑事诉讼中重要的证据规则之一。它不仅关系侦查机关取证行为的合法性与司法公正,更关系对犯罪嫌疑人合法权益的保障。我国2012年的刑事诉讼法新刑诉法正式确立了非法证据排除规则,但该规则存在明显的操作性不强的缺陷。遏制"冷暴力"讯问方式、完善侦查人员出庭作证和录音录像制度、建立律师在场权制度对于提高我国非法证据排除规则的可操作性具有十分重要的作用。     

What is valued in resolving environmental dilemmas: Individual and contextual influences

Justice is an increasingly important concept to examine with regard to decisions about environmental conflicts. But justice can be defined in a number of ways. This paper argues that the perceived importance of different principles of justice to environmental decisions is affected by the position argued, by contextual manipulations, and by individual difference variables. Literature is reviewed in support of the first of these points, suggesting that environmentalism is more congenial than antienvironmentalism to macrojustice principles. Data are presented to show that the way in which a conflict is described, in general or specific terms, affects the perceived importance of some justice principles, and that subject gender and environmental ideology are also related.     

国际刑事法院被害人赔偿制度简论

国际刑事法院被害人赔偿制度是国际刑事司法制度历史上第一次允许被害人对犯罪的个人提出赔偿要求。被害人赔偿制度在赔偿范围、赔偿程序以及赔偿执行方面均有系统而具体的规定。为这一制度服务的被害人信托基金发挥了很大作用并且在实践中取得了诸多成果。被害人赔偿制度在实现国际社会的正义与维护和平方面具有不可替代的作用。但该项制度在规则设计以及制度运行方面还存在诸多不足