{"title":"Reviving the Excessive Fines Clause","authors":"Beth A. Colgan","doi":"10.15779/Z38252F","DOIUrl":"https://doi.org/10.15779/Z38252F","url":null,"abstract":"Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine\" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125351038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On the Sanctioning of Economic Crime in Denmark","authors":"Henrik Lando","doi":"10.2139/ssrn.2415997","DOIUrl":"https://doi.org/10.2139/ssrn.2415997","url":null,"abstract":"This article - written for a symposium on comparative criminal law - discusses whether sanctions for economic crime have become excessive in the Danish context either in absolute terms or in comparison with sanctions for crimes involving physical harm.The text has three parts. In the first part, I present a theoretical framework that allows for a determination of optimal levels of sanctions and enforcement of crime. In the second part, I compare actual levels of sanctions in Denmark for various kinds of crime involving either economic or bodily harm, and discuss whether differences can be explained by the theory.In the third part, I compare a recent increase in the level of the sanction for breach of competition law and for insider trading with the theoretically optimal levels and I tentatively suggest that the increase may well have been warranted from a deterrence perspective. However, I stress that higher sanctions call for greater competence on the part of administrative agencies and courts due to the 'grey area' nature of some offenses within the two categories of regulatory crime.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"34 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131957753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Narrowing the Gap between Regulatory and Criminal Offences in Canada","authors":"P. Spiro","doi":"10.2139/ssrn.2366435","DOIUrl":"https://doi.org/10.2139/ssrn.2366435","url":null,"abstract":"Regulatory offences enacted in provincial statutes represent a large part of the law that is confronted by citizens, and a significant proportion of the cases prosecuted in court. There is a tendency to view them as being distinctly different and less serious than criminal offences that are embodied in the Criminal Code. This paper argues that it is preferable to view them as running along a continuum. The same actus reus can represent a minor infraction that is properly prosecuted as a strict liability offence with a modest fine, while in other instances it rises to the level of an act that causes serious harm and is morally culpable. The statutory regime should be designed to provide the proper guidance so that, where appropriate, prosecutors look for mens rea and seek larger penalties with an aim of deterrence similar to that of criminal offences. A number of examples suggest that the failure of legislation to clearly address these issues has undermined enforcement efforts and obscured the seriousness of some of these offences.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129913411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Inimai M. Chettiar, L. Eisen, Nicole Fortier, Timothy Ross
{"title":"Reforming Funding to Reduce Mass Incarceration","authors":"Inimai M. Chettiar, L. Eisen, Nicole Fortier, Timothy Ross","doi":"10.2139/SSRN.2370524","DOIUrl":"https://doi.org/10.2139/SSRN.2370524","url":null,"abstract":"This proposal lays out a policy framework to reform federal criminal justice funding practices. The new approach would reorient criminal justice incentives toward effectively fighting crime while also reducing mass incarceration. It then proposes concrete reforms to the largest nationwide criminal justice grant program. The criminal justice system in the United States is vast. As with all complex enterprises, this system is honeycombed with incentives that steer or deter behavior, for good or ill. These incentives can spur creative, modern law enforcement policies. But today’s fiscal incentives often guide them away from sensible policy. The result: a system that, despite some recent reforms, continues on autopilot. The proposal would use funds to steer actors toward modern criminal justice practices that reduce mass incarceration while improving public safety. Termed “Success-Oriented Funding” by this report, it uses the power of the purse to promote more effective and just practices by conditioning government dollars on specific, measureable goals. The goals for state and local agencies would drive toward a system that reduces crime and alleviates mass incarceration, while making more efficient use of taxpayer money. It can be applied to all criminal justice funding streams – federal, state, and local.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"171 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117303673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Justifying Criminal Sanctions for Cartel Conduct: A Hard Case","authors":"Caron Beaton-Wells, C. Parker","doi":"10.1093/JAENFO/JNS009","DOIUrl":"https://doi.org/10.1093/JAENFO/JNS009","url":null,"abstract":"Competition authorities increasingly favour criminal sanctions for ‘hard core’ cartel conduct. However, the empirical case for criminalisation is thin. This article reports on ‘first of its kind’ empirical research that interrogates the key justifications offered by enforcers in support of criminal cartel law enforcement. Based on an Australian case-study, but with implications for other jurisdictions, the research findings raise serious questions about claims regarding the deterrence impact of criminal sanctions and the inherent criminality of cartel conduct. The implications for the criminalisation ‘movement’ are far-reaching. Specific implications for the advocacy and outreach strategies of competition authorities are discussed, with particular emphasis on how such strategies should be formulated so as to maximise their value, not just in securing deterrence, but ultimately in building compliance.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"181 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134643980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Expanding the Inner Circle: How Welfarist Norms Escape In-Groups","authors":"A. Jakle","doi":"10.2139/ssrn.2305357","DOIUrl":"https://doi.org/10.2139/ssrn.2305357","url":null,"abstract":"I explore the influence of social mechanisms by which welfarist norms come to be appropriate by those outside the social group for which they were developed, and how they lead to patterned deviance from the law. Drawing on literature from law and society, law and economics, political science, social theory, and other fields, I use original research from a qualitative study of amateur baseball players to analyze the interplay between norms, groups, and deviance.Relationships with agents is widespread, despite being against both NCAA Bylaws and most players economic incentives. To explain this seemingly irrational pattern of rule-breaking, I argue that agent use arose to serve the economic interests of elite players and agents, and so became a badge of elite status. Players wishing to act as an elite appropriate this behavior despite variation in their incentives. I explain how players' narrative identities, psychological self-deception, aspirational behavior, and social roles lead them to adopt elite behavior and perpetuate a norm that does not serve their own material or economic ends.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114516834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Executive Summary: National Survey of Veterans Treatment Courts","authors":"Julie Baldwin","doi":"10.2139/ssrn.2274138","DOIUrl":"https://doi.org/10.2139/ssrn.2274138","url":null,"abstract":"This summary reports the major results from the author’s dissertation research using data collected from a national survey administered to 79 Veterans Treatment Courts (VTCs) in 2012. This research produced a comprehensive national overview of VTCs; the complete findings, additional analysis, and an in-depth case study of a VTC can be found in her dissertation titled “Veterans Treatment Courts: Studying Dissemination, Implementation, and Impact of Treatment-Oriented Criminal Courts” (University of Florida).","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125333455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Drug Policy Reform Agenda in the Americas","authors":"Ann Fordham, Coletta A. Youngers","doi":"10.2139/SSRN.2290794","DOIUrl":"https://doi.org/10.2139/SSRN.2290794","url":null,"abstract":"Latin America has emerged at the vanguard of efforts to promote debate on drug policy reform. For decades, Latin American governments largely followed the drug control policies and programs of Washington’s so-called war on drugs. Yet two parallel trends have resulted in a dramatic change in course: the emergence of left-wing governments that have challenged Washington’s historic patterns of unilateralism and interventionism and growing frustration with the failure of the prohibitionist drug control model put forward by the US government. In recent years, the regional debate on drug policy issues -- long dormant -- has surged as evident in media coverage, renewed interest on the part of academia, the emergence of grassroots initiatives such as the cannabis reform movement, and perhaps most importantly, calls for reconsideration of prevailing drug policies by a range of local and national officials. For the first time, sitting presidents are questioning the underlining premises of the international drug control paradigm and calling for debate on alternative approaches. Their actions have had repercussions internationally, as those presidents have successfully pushed for debate within the Organization of American States (OAS) and the United Nations (UN).","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117185592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Executives’ 'Off-the-Job' Behavior, Corporate Culture, and Financial Reporting Risk","authors":"R. Davidson, Aiyesha Dey, Abbie J. Smith","doi":"10.2139/ssrn.2096226","DOIUrl":"https://doi.org/10.2139/ssrn.2096226","url":null,"abstract":"We examine how executives’ behavior outside the workplace, as measured by their ownership of luxury goods (low “frugality”) and prior legal infractions, is related to financial reporting risk. We predict and find that CEOs and CFOs with a legal record are more likely to perpetrate fraud. In contrast, we do not find a relation between executives’ frugality and the propensity to perpetrate fraud. However, as predicted, we find that unfrugal CEOs oversee a relatively loose control environment characterized by relatively high and increasing probabilities of other insiders perpetrating fraud and unintentional material reporting errors during their tenure. Further, cultural changes associated with an increase in fraud risk are more likely during unfrugal (vs. frugal) CEOs’ reign, including the appointment of an unfrugal CFO, an increase in executives’ equity-based incentives to misreport, and a decline in measures of board monitoring intensity.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130191543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Deconstructing Correctional Officer Deviance: Toward Typologies of Actions and Controls","authors":"Jeffrey Ian Ross","doi":"10.2139/ssrn.2427392","DOIUrl":"https://doi.org/10.2139/ssrn.2427392","url":null,"abstract":"This article reviews the scholarly research that has been conducted on the problem of correctional officer (CO) deviance. It then outlines the most dominant kinds of CO deviance and the solutions that have been proposed and, in part, implemented. In so doing, the author provides a typology of the categories of deviance and the variety of controls. The researcher concludes with several recommendations on how these findings might be utilized to further the research on this subject.","PeriodicalId":350529,"journal":{"name":"Criminology eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131337711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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