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The April 2018 arrest of the alleged Golden State Killer has ignited law enforcement interest in using consumer genetics platforms to solve crimes. Proponents of using genetic genealogy to solve crimes have argued that the genetic data on which these identifications rely has been voluntarily uploaded and shared. But as this chapter exposes, this assertion of voluntariness is mistaken on both intrinsic and practical grounds when it comes to genetic relatives. Identifying genetic data is shared among genetic relatives involuntarily and immutably as a matter of biology. Such data is also shared in unmanageable ways in light of the extensive web of relatives whose DNA can be used to identify or learn about an individual. This chapter argues that the disjunction between potentially voluntary sharing of genetic data by consumer genetics users and the involuntary sharing imposed on their genetic relatives is both ethically and legally problematic. It then offers a path forward, drawing on a tenancy by the entirety framework from property law and the Supreme Court’s recent decision in the Carpenter case. This approach would permit law enforcement in some instances to use data stored on consumer genetics platforms–but only to seek direct identifications.
Automated facial recognition (AFR) is perhaps the most controversial policing tool of the twenty-first century. Police forces in England and Wales, and beyond, are using facial recognition in various contexts, from evidence gathering to the identification and monitoring of criminal suspects. Despite uncertainty regarding its accuracy, and widespread concerns about its impact on human rights and broader social consequences, the rise of police facial recognition continues unabated by law. Both the Government and the domestic courts were satisfied that police use of this technology is regulated adequately by existing statutory provisions regulating the processing of data and police surveillance generally. That is, until the recent judgment of the Court of Appeal in R (Bridges) v Chief Constable of South Wales Police and Others  EWCA Civ 1058, where it was held that the respondent's use of AFR was unlawful. This paper provides an analysis of AFR, reflecting on the outcome of that case and evaluates its nuanced findings. We suggest that the judgment leaves considerable room for police AFR to continue with only minor, piecemeal amendment to the legal framework. Drawing on comparative experience and relevant socio-legal scholarship, we argue that the relatively unfettered rise of police facial recognition in England and Wales illuminates deeper flaws in the domestic framework for fundamental human rights protection and adjudication, which create the conditions for authoritarian policing and surveillance to expand.
In recent years, no area of criminal law has received more public attention than the laws on sexual violence. Discussions about the need for reforms have exhibited a mobilizing force extending far beyond the legal community. From a legal perspective, these discussions concern intricate normative questions regarding the content of the right to sexual autonomy and the suitability of the consent paradigm to establish the limitations of its protection under criminal law. At the same time, they ultimately concern the question of gender-related societal power hierarchies. Acknowledging these broader socio-political dimensions allows us to comprehend the highly contentious manner in which this debate is often conducted. This Special Issue attempts to analyze from a transnational perspective both the fundamental legal and socio-political questions in the current discussions on sexual violence and criminal justice. A recurring theme is the question as to whether criminal law can be used not only as an instrument of repressive social control, but also as a means of power-critical – even emancipatory – social policy.
Predictive technologies are now used across the criminal justice system to inform risk-based decisions regarding bail, sentencing and parole as well as offender-management in prisons and in the community. However, public protection and risk considerations also provoke enduring concerns about ensuring proportionality in sentencing and about preventing unduly draconian, stigmatising and marginalising impacts on particular individuals and communities. If we are to take seriously the principle of individualised justice as desert in the liberal retributive sense, then we face serious (potentially intractable) difficulties in justifying any sort of role for predictive risk profiling and assessment, let alone sentencing based on automated algorithms drawing on big data analytics. In this respect, predictive technologies present us, not with genuinely new problems, but merely a more sophisticated iteration of established actuarial risk assessment (ARA) techniques. This chapter describes some of the reasons why principled and social justice objections to predictive, risk-based sentencing make so elusive any genuinely synthetic resolution or compromise. The fundamental question as regards predictive technologies therefore is how it might even be possible to conceive such a thing without seriously undermining fundamental principles of justice and fairness.
Ten years have passed since the lay judge or Saiban’in system was introduced in Japan in 2009. Not only did this have a significant impact on the way the criminal court operates, but it also represented an important step in raising the legal consciousness of citizens regarding state affairs. This chapter has three objectives. First, we present a brief history of the varied systems of lay participation adopted in Japan and examine the sociopolitical context in which the most recent system of Saiban’in trial was introduced. Second, we analyze the functioning of the lay judge system in its first decade of operation. Finally, we examine the sociopolitical consequences of the lay judge system in relation to: (a) Saiban’in trials of foreign military personnel stationed in Okinawa; (b) the contribution of the Former Lay Judge Network to calls for the abolition of the death penalty; and (c) the role of former Saiban’in in the 2016 implementation of recording and videotaping of interrogations. We conclude by examining the future of the lay participation system in Japan.
In winter 2014, the town of Thohoyandou, South Africa was gripped with panic after a series of rapes and murders. In this area, notorious for its occult specialists and witchcraft, stories began to circulate attributing the violence to demonic forces. These stories were given credence by the young man who was charged with these crimes. In his testimony, he confirmed that he was possessed by evil forces. Taking this story as a point of departure, this article provides an empirical account of the ambivalent ways state sites of criminal justice grapple with the occult in South Africa. Drawing on twenty-two months of ethnographic fieldwork, I describe how spirit possession is not easily reconciled with legal methods of parsing criminal liability in courtrooms. And yet, when imprisoned people are paroled, the state entertains the possibility of bewitchment in public ceremonies of reconciliation. Abstracting from local stories about the occult, this article proposes mens daemonica (“demonic mind”) to describe this state of hijacked selfhood and as an alternative to the mens rea (“criminal mind”) observed in criminal law. While the latter seeks the cause of wrongdoing in the authentic will of the autonomous, self-governing subject, mens daemonica describes a putatively extra-legal idea of captured volition that implicates a vast and ultimately unknowable range of others and objects in what only appears to be a singular act of wrongdoing. This way of reckoning culpability has the potential to inspire new approaches to justice.
The period 1960–2010 was a time of marked immigration into the UK from Commonwealth countries, either to fill employment gaps in the UK or to escape hostilities and conflict as many Commonwealth countries secured independence. The political climate of the UK; attitudes to immigration and cultural integration; the evolution of mental health sciences, including British psychiatry and the Royal College; the emerging research evidence; and the controversies around why migrants and minorities appeared to have higher incidence rates of severe mental illness and poorer outcomes were, and are still, all interrelated and contribute to the lives of minorities. In the 1970s, as a community, Black African Caribbean people of the Windrush generation were concerned about their children getting police attention, which occurred in a racist and political climate of oppression. More than sixty years later, the situation has escalated and diversified so that illegal drugs, gangs and violent crime are now stereotyped as ‘Black culture’. Inequalities generated by the education and criminal justice systems, early years care and employment practices are a backdrop against which the mental health systems are positioned to respond to societal harms to the marginalised.
Over the period of mass criminalization, social scientists have developed rigorous theories concerning the perspectives and struggles of people and communities subject to criminal legal control. While this scholarship has long noted differences across racial groups, it has yet to fully examine how racism and criminalization interrelate in the making of criminalized people’s perspectives and their visions for transforming the legal system. This article engages with Du Boisian sociology to advance a theory of subjectivity that is attuned to the way criminalization reproduces the subjective racial order and that aims to uncover subaltern strategies and visions for transforming the structure of the law and broader society. Through a critical review of interpretive scholarship across the social sciences and an original analysis of interviews with a diverse sample of criminal defendants conducted in the early years of the Black Lives Matter movement, I illustrate how a Du Boisian approach coheres existing theories of criminalized subjectivities, clarifies the place of White supremacy and racism, and provides a theory of legal change rooted in ordinary people’s experiences and needs. I introduce the concept of legal envisioning, defined as a social process whereby criminalized people and communities imagine and build alternative futures within and beyond the current legal system. Du Boisian sociology, I conclude, provides the methodological and theoretical tools necessary to systematically assess legal envisioning’s content and to explain its contradictions, solidarities, and possibilities in overlooked yet potentially emancipatory ways.
In a context where the criminal courts have been drastically affected by coronavirus, this paper seeks to demonstrate that the presumption of innocence risks becoming a further casualty of Covid-19. It will argue that prolonged pre-trial detention of unconvicted defendants has been sanctioned by the senior judiciary under the Custody Time Limit (CTL) Regulations. Following a series of important CTL decisions, a universal position of the senior judiciary, one supportive of government, is emerging: despite the case backlog resulting in defendants facing trial delays of unknown length, the exceptional circumstances of the pandemic which the executive faces, amounts to ‘good cause’ to extend CTLs. It will be argued that the correct approach for courts to follow is that that they must hear evidence that justifies why no court rooms are available before using that to mandate extensions. It will be further contended that these far-reaching decisions came from the senior judiciary's perceived need to mop up the problem posed by widespread refusals to extend CTLs, raising questions as to their ability to act independently of political pressure.
Algorithms influence every facet of modern life: criminal justice, education, housing, entertainment, elections, social media, news feeds, work… the list goes on. Delegating important decisions to machines, however, gives rise to deep moral concerns about responsibility, transparency, freedom, fairness, and democracy. Algorithms and Autonomy connects these concerns to the core human value of autonomy in the contexts of algorithmic teacher evaluation, risk assessment in criminal sentencing, predictive policing, background checks, news feeds, ride-sharing platforms, social media, and election interference. Using these case studies, the authors provide a better understanding of machine fairness and algorithmic transparency. They explain why interventions in algorithmic systems are necessary to ensure that algorithms are not used to control citizens' participation in politics and undercut democracy. This title is also available as Open Access on Cambridge Core.
Chapter Two, “The Social Life of Crime: Charles Dickens’s Great Expectations and Philip Meadows Taylor’s Confessions of a Thug” reads the oppositional evolution of criminal justice in England and India by comparing the two novels. I begin with the observation that the movement toward rehabilitation and the humanization of the criminal in nineteenth century England occurs in tandem with the rise of corporal punishment and penal transportation in India. Taking the two novels as instances of this contradictory impulse, I examine the figure of the thug as a cipher for racialized fears of Indian criminality. In particular, I look at representations of paternity and masculinity within both novels. I show that Abel Magwitch becomes humanized in Dickens’s novel by taking on the mantle of fatherhood for Pip. By contrast, Ameer Ali is condemned for his paradigmatic inability to foster a viable childhood. I argue that criminality emerges within a Victorian matrix of race and patriarchy in which to be a father, or father figure, is to be properly human.
The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.
This chapter offers an insight into the complex relationship between peace-making, peace agreements and peacekeeping. It considers their interactions at the strategic, operational and normative levels. First, the chapter reviews the connections between peace-making, peace agreements and peacekeeping. It demonstrates that modern peacekeeping operations, typically deployed into contexts where there is little or no peace to keep, have an increasingly important role to play in the peace-making process. Second, the chapter assesses the normative issues that most impact on peace-making, peace agreements and peacekeeping. It discusses how the strategic peace versus justice debate manifests at the operational and tactical levels, and is amplified by the increasing trend of operations mandated with protection of civilians, human rights and international criminal justice tasks. It explores how this mandate trend can complicate an operation’s role in the peace-making process due to tensions between its multiple responsibilities.
Given the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.
To date, in Western jurisdictions, many criminal justice reforms are devised and implemented with a close eye on public opinion. These are typically intended to regain or foster legitimacy. However, within this context, there is no common understanding of this concept. This essay aims to provide such a conceptualisation of legitimacy, to enable a consistent and systematic evaluation of attempts to accommodate public opinion. To this end, five levels of legitimacy research are discussed that could structure evaluations of public-opinion-targeted reforms: (1) the normative dimension, (2) the ‘audiences’ addressed, (3) the purpose of the reforms, (4) trust and distrust, and (5) dialogic, or longitudinal effects. Furthermore, since research departing from these five levels of analysis is likely to result in observations that are, by nature, incommensurable, it is argued that an overall assessment of legitimacy always requires a judgment, rather than mere measurement.
In the recent past, the #MeToo movement has shaken India. A docket of high-flying names, from politicians to celebrities and journalists, have come under scrutiny for alleged sexual abuse of women. Flagged by a Bollywood actress, the #MeToo campaign in India ignited feminists, academicians, and policymakers to re-examine women’s continued abuse in all sections of society. Despite a stringent legal regime enforced after the Nirbhaya tragedy, the abuse of women continues unabated. Feminists opine that violence against women remains an ongoing concern that is heightened in the face of a waning criminal justice system that fails to address their plight. Lack of confidence in the system discourages women from approaching the authorities, something palpable in #MeToo allegations, where women preferred to remain silent in the face of inevitable backlash from society, lack of support and cooperation from police and prosecution and finally, courts, where the victim is positioned as the accused to respond to questions of how and why? This article examines the #MeToo movement against the rising crime graph’s backdrop and the criminal justice system’s consequent failure to respond to the same.
This essay explores four key dimensions of political science literature on the U.S. criminal legal system, by way of introducing articles in the special issue on criminal justice featured in the Journal of Racial and Ethnic Politics. We situate police as an institution of social control, rather than providing safety for people vulnerable to crime. The vast array of policy tools to surveil, track, and detain citizens, which lack commensurate restraints on their application, amount to a finely tuned carceral machine that can be deployed against groups newly identified as deviant. We therefore turn attention to this dynamic with our second theme: the criminalization of immigrants, the expansion of interior immigration enforcement, and the consequent targeting of Latinx people. We likewise discuss lessons for reform that can be drawn from research on representation and the political socialization that occurs as a consequence of involuntary contact with the system. We conclude with a brief discussion of directions for future research. The criminal legal system is a key force for persistent racial and class inequality. By turning attention to the politics of the criminal legal system, we forward a critical and understudied facet of American political life that intersects with all corners of the discipline.
Missing court files pose a serious issue regarding access to justice for illiterate and indigent prisoners, especially if the files go missing after the prisoner has been convicted and sentenced. Malawi's High Court recently grappled with the issue of missing court files post-conviction in the course of a large resentencing process, known to the legal community as the Kafantayeni Project. The Kafantayeni Project resentenced over 150 prisoners whose mandatory death sentences for murder were deemed unconstitutional, despite the majority of them missing court files. This article outlines the state of judicial record keeping in sub-Saharan Africa, the origins of the Kafantayeni Project, the extent of the record keeping problem it uncovered, how the judiciary resolved those issues while adding to the jurisprudence on missing court files, and the future implications for Malawi and elsewhere.
The article explores the extent to which the resilience of hybrid courts is impacted by their selection of cases. It proceeds from the observation that the cases pursued by hybrid institutions are the result of choice under constraints. The article examines the identity of the case-choosers and the relevance of such choices for the internal and external resilience of hybrid courts. The research reveals the need to distinguish between case selection by the drafters and case selection by court authorities in the context of each institution and the tensions between these two sets of practices. These tensions are examined in the context of four hybrid institutions. The Office of the Prosecutor at the Special Court for Sierra Leone enjoyed a relatively broad measure of discretion in terms of case selection. However, the Extraordinary African Chambers, the Cambodia Chambers and the Kosovo Specialist Chambers seem to have been established with specific accused in mind. The article argues that resilience considerations are probably relevant in instances of case selection by the court officers, albeit they are context sensitive and may vary over time. Case selection prior to the establishment of a court and/or by political stakeholders, on the other hand, is ill-suited for analysis using internal resilience and arguably fall outside its scope of application. For these cases, the research argues that the discussion requires re-orientation with emphasis shifted to concepts such as contribution to national reconciliation as opposed to resistance to external pressure.
This paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.