Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer.     

Terrance McConnell,Inalienable Rights

Law and Philosophy -     

Zero-base budgeting: some lessons from an inconclusive experiment

Abstract. This paper describes the consequences of an experiment conducted with four governmental programs intended to evaluate the utility of ZBB for improving public sector decision-making. The results of this experiment were mixed. On the one hand, we clearly observed greater participation by operating managers in the formulation of budgets. This, we were frequently told, had positive consequences for staff development and program planning. The zbb experiment also resulted in the generation of more and better information in support of budget requests. However, information has value only to the extent that it increases the probability that decision makers will choose better options than they would without it. In no case was it possible to identify changes in budget amounts or program content that might not have occurred following standard budgeting practices. We do not believe the absence of fiscal or program impact resulting from this experience is in any way conclusive evidence against zbb , but it should serve as a warning to the unwary or over-enthusiastic user. Sommaire. Cet article fait état d'une expérience conduite sur quatre programmes gouvernementaux dans le but d'évaluer l'utilité de la méthode zbb comme moyen d'améliorer le processus de décision à l'intérieur du secteur public. Les résultats de l'expérience sont partagés. D'une part, il apparaît évident que cette méthode suscite plus de participation chez les gestionnaires dans la formulation des budgets; cette participation accrue produit — nous a-t-on affirméà plusieurs reprises — des effets positifs sur le perfectionnement du personnel et sur la planification des programmes. L'expérience a eu aussi pour effet d'engendrer des informations plus nombreuses et de meilleure qualité aux fins de justification des demands budgétaires. Cependant, l'information n'a de valeur que dans la mesure où elle augmente la probabilité que de meilleurs choix seront effectués. Or, dans aucun cas, il n'a été possible d'identifier des changements dans les budgets alloués ou dans le contenu des programmes qui ne seraient pas survenus avec l'emploi des méthodes traditionnelles de préparation des budgets. Nous ne croyons pas que cette absence d'impact sur la fiscalité ou sur les programmes témoigne de façon concluante contre la méthode du zbb , mais c'est une mise en garde pour ceux qui seraient tentés de surestimer les avantages de cette méthode.     

Cyberfraud and the implications for effective risk-based responses: themes from UK research

The nature of the risk or threat posed by ‘cyberfraud’ - fraud with a cyber dimension – is examined empirically based on data reported by the public and business to Action Fraud. These are used to examine the implications for a more effective risk-based response, both by category of fraud and also responding to cyberfraud generally, not just in the UK. A key characteristics of cyberfraud is that it can be globalised, unless there are major national differences in attractiveness of targets or in the organisation of control. This does not mean that all cyberfraud is international, however: not only do some involve face to face interactions at some stage of the crime cycle, but in online auction selling frauds, it appears to be common for the perpetrators and victims to reside in the same country. After reviewing patterns and costs of victimisation and their implications for control, the paper concludes that any law enforcement response must begin by being strategic: which other public and private sector bodies should be involved to do what; what should be the specific roles and responsibilities of the police and where ‘problem ownership’ should lie; what are we willing to pay for (in money and effort) for greater cybersecurity and how to reduce ‘market failure’ in its supply; and, how that security is going to be organised for and/or by the huge numbers of businesses and people that are (potentially) affected.     

Criminal network vulnerabilities and adaptations

The current paper aimed to investigate the effectiveness of five law enforcement interventions in disrupting and dismantling criminal networks. We tested three law enforcement interventions that targeted social capital in criminal networks (betweenness, degree and cut-set) and two interventions that targeted human capital (actors who possess money and those who possess precursor chemicals). These five interventions are compared with each other and with random (opportunistic) removal of actors in two settings: (i) with network adaptation incorporated into the simulations and (ii) without network adaptation. Results illustrate that the removal of actors based on betweenness centrality was the most efficient strategy, leading to network disruption in the least number of steps and was relatively consistent across replications. Targeting actors who possessed money was the second most effective overall and was also relatively consistent in its disruptive effect.     

Assessing Sexual Coercion: Survey Wording Differences and the Victimization-Perpetration Discrepancy

The current study examined the impact of item wording on self-reported sexual assault perpetration and victimization rates. The Sexual Experiences Survey (SES; Koss et al. in Journal of Consulting and Clinical Psychology, 55, 162–170, 1987) is a self-report assessment of female sexual victimization and male sexual perpetration. Studies using the SES consistently report a marked discrepancy between victimization rates and perpetration rates. The wording of the SES items asks respondents to report whether experiences occurred in the absence of female want. It was hypothesized that modified items, which did not require an analysis of female want, would yield increased male response rates compared to the original SES, but that female rates would be equivalent across versions. Parallel male and female SES items, for coercive sexual contact and intercourse, were compared with modified items. Analyses of the data confirmed the hypothesis that modified items yielded increased reports for males in the contact and intercourse conditions. Female response rates on modified items were increased in the contact condition, but not the intercourse condition. Implications of these findings were discussed.     

Differential enforcement across police jurisdictions and client demand in paid sex markets

Police officers on the ground, as well as their senior officers, generally accept the view that arresting prostitutes and their clients is simply not as important as arresting many other types of ‘offenders’. Police officer preferences and priorities will differ such that the discretion applied to the enforcement of paid sex market related offences varies across locations. Motivated by increasing policymaker interest in considering demand-side policies, a simple model is developed to help analyse how clients will be likely to respond to enforcement level differences across jurisdictions. A range of policy implications that arise are also identified and discussed.