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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.
Day fines were introduced in 1939 as an alternative to short-term custodial sentences and to punish rich and poor equally hard. Thus, the daily unit must be fixed according the average daily earnings of the offender (taking account of living conditions, capital resources, family responsibilities etc.). The number of day fines must be fixed between 1 and 60, having regard to the seriousness of the offence. Day fines can be applied for violations of the Criminal Code only in court (no administrative day fines). Thus, day fines are relatively rare compared to the total number of fines, but used for a broad range of violations of the Criminal Code, including negligent manslaughter and assault. The Danish experience shows that there is a risk of the system not being applied in accordance with its purpose. In some cases, judges calculate the fine by determining first the over-all amount of the fine and therefrom deduct the number of day fines and the daily unit. There is no research on the level of acceptance of day fines among the general population. It has been proposed to abolish the system, but there has not been much public criticism for the last 20 years.
This chapter examines how the police and courts became the main audience for competing revolutionary narratives of guilt and victimization. People wanted to punish others and rehabilitate themselves. The courts functioned both as a sounding board for narratives through which one found resonance and affected verdicts and sentencing and also as a transmitter of new narratives to the public, as court verdicts seemed to be the official or “true” story of the revolutions. The transnational comparison of Budapest and Munich shows that the narrative developed in each was quite different and led to differential severity of verdicts and sentencing, with the courts in Hungary being more punitive. This situation in turn further radicalized Hungarians on the Left and the Right in the interwar period, with the “judicial terror” added to the fraught narrative of revolution and counterrevolution. In Bavaria, though memoirs such as Ernst Toller’s sought to rally supporters with examples of legal mistreatment, the revolution did not play as central a role in the symbolic world of Weimar German politics, overshadowed by even limited events such as the January 1919 Spartacus Uprising and the martyrdom during that revolt of the communist leaders Karl Liebknecht and Rosa Luxemburg.
This chapter presents our core argument – the close association of prisons and crime – and shows that more imprisonment may have increased criminality. It presents several hypotheses for the prison growth and studies the nature of policies enacted in response to the rise in criminality and which led to the prison explosion. We use an in-depth analysis of three representative countries: Colombia, Mexico, and Chile. We maintain that high turnover and the increased severity of punishment for very serious crimes account for the prison explosion, impacting critical living conditions within correction facilities throughout Latin America. We argue that prison growth has endogenously produced more crime on the streets because high inmate turnover has created large new cohorts who reenter society and rapidly reengage in criminal acts. We test this hypothesis by modeling a regression analysis of incarceration rates for property crime in order to prove that imprisonment has a delayed-lagged effect on property crimes, providing substantial evidence for the criminogenic effect of prisons.
Risk assessment – measuring an individual’s potential for offending – has long been an important aspect of most legal systems, in a wide variety of contexts. In most countries, sentences are often heavily influenced by concerns about preventing reoffending. Correctional officials and parole boards routinely rely on risk assessments. Post-sentence commitment of “dangerous” offenders (particularly common in connection with sex offenders) is based almost entirely on determinations of risk, as is involuntary hospital commitment of people found not guilty by reason of insanity and of people who are not prosecuted but require treatment. Detention prior to trial is frequently authorized not only upon a finding that a suspect will otherwise flee the jurisdiction, but also when the individual is thought to pose a risk to society if left at large. And police on the streets have always been on the look-out for suspicious individuals who might be up to no good.
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.
This paper argues that lower courts have used their discretionary powers provided within legislation and St-Cloud to infuse a predominantly retributive interpretation into the public confidence in the administration of justice ground of pre-trial detention. This is illustrated notably by their choice of and weight afforded to the various aggravating and mitigating factors, the circumstances that relate to the commission of the offence, as well as their analysis of the length of imprisonment. This transfer of sentencing rationales, and to a greater extent, retributivism, into the third ground of pre-trial detention is used, in part, to justify pre-trial detention and can partially explain the rates of pre-trial detention. Finally, the underlying sentencing logic within the bail process can be understood within a sociological perspective, which examines the wider social functions of institutions and suggests that the bail process is an extension of punishment that serves to reinstate social order and public confidence.
Animus toward Latinos is seeping its way into supposedly race-neutral policies such as crime control and policing. This chapter documents how the “browning” of crime news can prime animus toward Latinos when people are asked to make judgments about criminal justice policies. This animus toward Latinos is demonstrated to have a strong relationship with a desire to increase criminal sentencing, devote more resources to law enforcement, and limit police accountability via body cameras. The connection between animus toward Latinos’ and Whites’ criminal justice policy preferences is consistent with the idea that, for many Americans, crime control policies are a means of social control over disliked minority groups.
L’objectif de cet article est de divulguer des résultats de recherches exploratoires sur le rapport entre le système judiciaire canadien et les victimes d’actes criminels dans le contexte de la détermination de la peine. De manière plus précise, l’auteur s’intéresse au processus de mise en forme des attentes des victimes qui opère à ce stade des procédures judiciaires. Pour observer ces mises en forme, l’auteur s’appuie sur des décisions judiciaires qui ont été rendues par les tribunaux canadiens. À partir de son corpus empirique, l’auteur décrit comment certaines attentes victimaires sont plus audibles que d’autres et comment leur intégration dans le processus de détermination de la peine varie en fonction du type d’attente et des circonstances à l’intérieur desquelles elles émergent.
Kai Ambos takes up the question of the domestic analogy ‘proper’ and raises the question of whether a right to punish can exist without a state, and answers it in the affirmative. When it comes to what Elies van Sliedregt would call the domestic analogy ‘of transplants’, he is less sceptical: In his view, international criminal law can very well borrow and import concepts from domestic law, albeit it should not be done too schematically and there might be some limits. As regards sentencing, Ambos emphasizes the important of concrete sentencing factors and a transparent sentencing procedure, but in his view theories of punishment have no influence on the outcome.
Silvia D’Ascoli discusses some issues that were addressed in the contributions of Whiting, van der Wilt and Werle and Epik. She agrees that the objectives and purposes of punishment guiding the sentencing process should be predetermined by the relevant system and not decided by the judges on a case-by-case basis and is disappointed how little the ICC jurisprudence on sentencing has so far contributed to the development of rationales for international punishment. Similarly, in her view it is a missed opportunity that no clear sentencing guidelines have been determined at the ICC (as was the case at the ad hoc Tribunals), including any expressed weight, from the purposes of punishment. She recalls that the initial Prosecution’s proposition of ‘80 per cent baseline’ of the statutory maximum as a starting point to determine sentences was dismissed by the Trial Chamber – and after that the Prosecution did not propose any other approach or solution. L49
This edited volume provides, for the first time, a comprehensive account of theoretical approaches to international punishment. Its main objective is to contribute to the development of a consistent and robust theory of international criminal punishment. For this purpose, the authors - renowned scholars in the fields of criminal law, international criminal law, and philosophy of law, as well as practitioners working at different international criminal courts and tribunals - address the question of meaning and purpose of punishment in international law from various perspectives. The volume fleshes out the predominant dimensions of a theory of international punishment and highlights the differences between 'ordinary' (domestic) crime and international crimes and their respective enforcement. At the same time, throughout the volume a major focus is on the practical consequences of the different theoretical approaches, in particular for the activities of the International Criminal Court.
This chapter provides a general picture of the criminal justice system in Hong Kong. It highlights the roles and powers of key criminal justice agencies including the Hong Kong Police Force (HKPF), the Independent Commission Against Corruption (ICAC) and the prosecution. It includes discussion of police powers and prosecutorial decision-making. This chapter also goes through the criminal procedure, drawing attention to key decision points such as bail, court venue, the plea and the standard of proof. It concludes by looking at the various sentencing options at the court’s disposal.
In R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people represents a “crisis.” Since Gladue’s release, the language of “crisis” has been used with frequency in Canadian legal discourse. In this article, I analyze how this language has shaped the broader legal understanding of Indigenous mass imprisonment. My focus is not on specific iterations or uses, but on the cumulative impact of the language of “crisis” over the last twenty years. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. In the face of the relentless intensification of Indigenous mass imprisonment, the language of “crisis” has operated to subtly entrench the colonial structures it purports to disrupt. Urging a shift away from its use, I argue that the language of “crisis” is not only ill suited to address the problem, but is part of the problem.
The empirical literature on plea decisions shows that rational motives and coercion may coexist, but there is uncertainty with regard to whether accused feel that their decision is voluntary or made under considerable pressure. However, in most jurisdictions, the legitimacy of the plea bargaining process rests on the Court’s obligation to ensure that the guilty plea is entered voluntarily and knowingly. This study proposes to understand how the accused interpret the rational or coercive elements of their decision-making process and the extent to which their decision to plead guilty is voluntary. Based on semi-structured interviews with twenty convicted individuals, we describe the different decision-making processes, from free and informed decisions to forced decisions to plead guilty while innocent.
This article considers the current sentencing purposes in Namibia. It discusses the legislator's failure to articulate these purposes, leaving this to the judiciary, and identifies the dangers that arise from this legislative lacuna. It establishes that current sentencing purposes are fundamentally premised upon a retributivist philosophy, transplanted into Namibia during the colonial period. The article thus advocates for sentencing reform, aimed at restoring a paradigm based on African values. It does so by analysing African indigenous justice systems, using Ubuntu as an Afrocentric value. The article establishes how Ubuntu is contemporarily mirrored by restorative notions of justice that prioritize victims, offenders and the community, thereby asserting sentencing purposes that promote reconciliation, reparation and offender re-integration. In juxtaposing this with other sentencing purposes, the article critiques comparable jurisdictions that have recently incorporated restorative justice and proposes a set of draft sentencing purposes in the appendix.
This chapter determines the extent to which Daniel S. Lev’s academic legacy remains relevant in the District Courts of greater Jakarta during Indonesia’s ‘Reform’ (reformasi) era from 1998 onwards. In other words, is modern Jakarta District Court ‘culture’ recognisable from Lev’s early works, authored during the Sukarno and Suharto eras? The regency or municipality-level District Courts (pengadilan negeri) try both civil and criminal cases across the Indonesian archipelago. However, this chapter’s case study focuses exclusively on sentencing decisions in criminal cases at first instance, which tend to dominate the case dockets of the District Courts. Criminal punishment, as a subject attracting strong views and even cultural fascination, and unconstrained in Indonesia’s predominantly civil law criminal justice system by formal case law precedents or sentencing guidelines, forms an ideal vehicle through which to analyse a jurisdiction’s ‘internal’ legal culture, as it manifests here in the attitudes and customs of judges. In brief, this chapter’s findings on Lev’s continuing influence are mixed: some of Lev’s earlier observations mirror the current attitudes and behaviours of greater Jakarta District Court judges in criminal cases, yet other observations are either no longer relevant after reformasi, or at the very least, may not be relevant at the District Court level or within greater Jakarta as a geographical region and cultural space.
This article introduces the designs and the potential problems of the new lay judge system in Taiwan. This article first describes the background of the development of lay participation in Taiwan, and the 2012 Observer Jury System and the 2018 Lay Judge System drafted by the judiciary. The core of this paper is a qualitative study of four mock trials conducted by four district courts in Taiwan. Through observations and interviews with mock trial lay judges, this article addresses three main problems of the new system, including professional judges’ domination in deliberations, the comprehensibility of law, and lack of evidence rules. It also provides a discussion of the possible solutions to the problems observed. This article urges that training sessions should be provided to both lay judges and legal professionals, adjust the discovery rule, provide guidance on sentencing, and create evidentiary rules.