New Criminal Law Review最新文献

{"title":"Aggravating and Mitigating Factors in Context: Culture, Sentencing, and Plea Mitigation in Hong Kong","authors":"K. Cheng","doi":"10.1525/NCLR.2017.20.3.506","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.3.506","url":null,"abstract":"Despite the significant role that aggravating and mitigating factors play in sentencing outcomes, they have been neglected by both policy and research. The purpose of this study is to examine the influence of culture—which has been deemed to be an “elusive” influence—in the plea mitigation and sentencing process. An empirical study was conducted to examine the effects of both offense-specific and offender-specific factors that may serve to aggravate or mitigate the sentence in a magistrate’s court in Hong Kong. Data was collected through courtroom observations of sentencing hearings ( n = 712). Statistical analyses reveal that Chinese cultural and social norms motivate judicial decisions, as defendants who did not conform to the cultural expectations of family, industry, enduring hardships, and maintaining good social order are likely to be sentenced more severely when they are convicted of a crime. A disciplinary model of sentencing is proposed to explain why certain factors are considered as aggravating in Hong Kong’s penal culture. These factors, however, are extraneous to the offense or the culpability of the offender. Implications and future directions are discussed.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"9 1","pages":"506-533"},"PeriodicalIF":0.4,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79331864","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":"U.K. Counterterrorism Law, Pre-Emption, and Politics : Toward “Authoritarian Legality”?","authors":"Christos Boukalas","doi":"10.1525/NCLR.2017.20.3.355","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.3.355","url":null,"abstract":"Since the turn of the century, across North Atlantic countries, counterterrorism law has been an area of relentless, highly prioritized, legal production that often challenges rule of law principles. This article provides a general overview of United Kingdom counterterrorism legislation and, drawing from jurisprudence, state theory, and political philosophy, constructs an analytical framework to assess its implications for the broader shape, function, and logic of law. It starts by assessing the dynamic tension between authoritarian and democratic elements that constitutes modern law, thus setting the overall conceptual framework in which counterterrorism law pertains. It proceeds to analyze U.K. counterterrorism law, by juxtaposing it to its United States counterpart and by deciphering the key trends into which its provisions combine. Based on this account, the article considers the implications of counterterrorism law for the law-form, that is, for the articulation between legal content, logic, and institutionality. It finds that, although the content and logic of counterterrorism law are incompatible with rule of law principles, they are developed in an institutional framework adherent to the rule of law. To account for this paradox, the article concludes that counterterrorism law signals the advent of authoritarian legality, a reconfiguration of the rule of law where the latter holds its institutional shape, but comes to consist of, and be driven by, authoritarian content and purposes. The article outlines the main characteristics of authoritarian legality, compares it to existing approaches to counterterrorism law, and indicates its plausibility for U.S. counterterrorism jurisprudence.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"10 1","pages":"355-390"},"PeriodicalIF":0.4,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74395082","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":"Mandatory Sentencing Around the World and the Need for Reform","authors":"A. Gray","doi":"10.1525/NCLR.2017.20.3.391","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.3.391","url":null,"abstract":"This article considers the increased use of mandatory sentencing provisions in a range of jurisdictions, including Canada, Australia, the United States, and United Kingdom/Europe. It finds that, whereas some courts have struck out mandatory sentencing laws, often mandatory minimum penalties have been validated. This jurisprudence is considered through a range of themes, including notions of arbitrariness, the doctrine of proportionality, the relevance of objectives of the criminal justice system, and broader questions regarding the separation of powers.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"40 1","pages":"391-432"},"PeriodicalIF":0.4,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72557182","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 Impact of Moral Panic on the Criminal Justice System – Hit and Run Traffic Offenses as a Case Study","authors":"M. Gur‐Arye","doi":"10.1525/NCLR.2017.20.2.309","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.2.309","url":null,"abstract":"The article reveals the relationship between the societal phenomenon of moral panic and the specific waves that it generates in the legal system. It focuses on hit and run traffic offenses and suggests that a moral panic with regard to these offenses uniquely impacted the Israeli criminal justice system during 2002-2013. The media generates concern, fear and outrage that are disproportionate to both the size and the nature of the offenses. In describing hit and run accidents, both the media and the courts demonize the drivers. Both the courts and the legislator react to the panic with disproportionally harsh punishments. The article also offers possible explanation as to why hit and run traffic offenses generated moral panic uniquely in Israel and why this occurred during the period 2002-2013. Although the article focuses on hit and run traffic offenses in Israel, it has more general implications: it reveals in detail the interaction between constructed public anxieties and systems charged with delivering justice.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"42 1","pages":"309-353"},"PeriodicalIF":0.4,"publicationDate":"2017-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76706128","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":"Combatting Police Discrimination in the Age of Big Data","authors":"Sharad Goel, M. Perelman, Ravi Shroff, D. Sklansky","doi":"10.1525/NCLR.2017.20.2.181","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.2.181","url":null,"abstract":"The exponential growth of available information about routine police activities offers new opportunities to improve the fairness and effectiveness of police practices. We illustrate the point by showing how a particular kind of calculation made possible by modern, large-scale datasets — determining the likelihood that stopping and frisking a particular pedestrian will result in the discovery of contraband or other evidence of criminal activity — could be used to reduce the racially disparate impact of pedestrian searches and to increase their effectiveness. For tools of this kind to achieve their full potential in improving policing, though, the legal system will need to adapt. One important change would be to understand police tactics such as investigatory stops of pedestrians or motorists as programs, not as isolated occurrences. Beyond that, the judiciary will need to grow more comfortable with statistical proof of discriminatory policing, and the police will need to be more receptive to the assistance that algorithms can provide in reducing bias.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"20 1","pages":"181-232"},"PeriodicalIF":0.4,"publicationDate":"2017-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85236787","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":"A Content Analysis of Post-Jones Federal Appellate Cases","authors":"C. Totten, James A. Purdon","doi":"10.1525/NCLR.2017.20.2.233","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.2.233","url":null,"abstract":"The United States Supreme Court in 2012 in United States v. Jones changed the legal test for what constitutes a police search under the Fourth Amendment. After Jones , a search occurs when: (1) an individual’s privacy rights are violated ( “Katz” test); and/or (2) an individual’s property is trespassed upon ( “Jones” test). From 1967 until Jones , only the Katz test was used. In light of this significant change, this study explores two questions using a content analysis approach: (1) the choice of legal test used by federal appellate courts to decide the “search” question (i.e., the Jones test, Katz test, or both tests), and (2) these courts’ holding regarding whether a “search” occurred. Most of these courts are relying upon Jones in some fashion; however, Jones has not prevented these courts from frequently applying Katz . Though reliance on Jones alone has led to uniform determinations by courts of a “search” and hence enhanced Fourth Amendment protections, overall post- Jones there are nearly an equal number of courts finding a “search” and “no search.” When courts apply Katz alone to evaluate a search, they have held no search occurred. In sum, Jones’ impact on Fourth Amendment search law has been incremental and gradual.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"46 1","pages":"233-308"},"PeriodicalIF":0.4,"publicationDate":"2017-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90587810","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":"Penal Humanitarianism? Sovereign Power in an Era of Mass Migration","authors":"M. Bosworth","doi":"10.1525/NCLR.2017.20.1.39","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.1.39","url":null,"abstract":"Since creating the ‘Returns and Reintegration Fund’ in 2008, the British government has financed a variety of initiatives around the world under the rubric of “managing migration” which have blurred the boundaries between migration control and punishment. This article documents and explores a series of overlapping case studies undertaken in Nigeria and Jamaica where the UK funded prison building programs, mandatory prisoner transfer agreements, prison training programs and resettlement assistance for deportees. These initiatives demonstrate in quite concrete ways a series of interconnections between criminal justice and migration control that are both novel and, in their postcolonial location, familiar. In their ties to international development and foreign policy they also illuminate how humanitarianism allows penal power to move beyond the nation state. In so doing, these overseas programs raise important questions about our understanding of punishment and its application.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"72 1","pages":"39-65"},"PeriodicalIF":0.4,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83239171","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":"Human Trafficking, Immigration Regulation and Sub-Federal Criminalization","authors":"Jennifer M. Chacón","doi":"10.1525/NCLR.2017.20.1.96","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.1.96","url":null,"abstract":"In less than two decades, the issue of human trafficking has evolved from a relatively obscure concept to a widely discussed international social problem that has engendered a host of interventions at the international, national, and sub-national level. The purpose of this article is to shed light on how anti-trafficking efforts have been instantiated at the local level. This article assesses the record of sub-federal anti-trafficking efforts in the United States by looking at state anti-trafficking legislation, newspaper coverage of anti-trafficking efforts within states, and published cases involving state trafficking prosecutions in nine different states in the United States in the period from 2004-2014. These states’ anti-trafficking laws have varied histories. Some state legislators appear to have been motivated primarily by concerns about migration control, others by concerns about the need to further criminalize sexual exploitation. This article discusses these histories and then analyzes the implementation of anti-trafficking laws at the state level by looking at criminal prosecutions brought under these state trafficking laws. This analysis reveals that while trafficking law functions discursively as an important component of state-level migration control efforts in some jurisdictions, by and large state prosecutors in all jurisdictions have largely tended to target citizens, not noncitizens, for their trafficking prosecutions. Most state prosecutors have used state level anti-trafficking statutes to charge members of racial minority groups – largely, but not exclusively, men – for trafficking in connection with commercial sex offenses. The final section of the article explores some of the implications of these findings, and offer suggestions for future research. Anti-trafficking laws have brought needed attention to wide-ranging problems of human exploitation. Like prior iterations of criminal vice regulation, however, the deployment of state criminal laws to achieve anti-trafficking goals can also work in ways that perpetuate racially discriminatory policing and migrant criminalization.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"15 1","pages":"96-129"},"PeriodicalIF":0.4,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84404789","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":"Criminal Justice in an Era of Mass Deportation: Reforms from California","authors":"Ingrid V. Eagly, Ingrid V. Eagly","doi":"10.1525/NCLR.2017.20.1.12","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.1.12","url":null,"abstract":"After a sustained period of hypercriminalization, the United States criminal justice system is undergoing reform. Congress has reduced federal sentencing for drug crimes, prison growth is slowing, and some states are even closing prisons. Low-level crimes have been removed from criminal law books, and attention is beginning to focus on long-neglected issues such as bail and criminal court fines. Still largely overlooked in this era of ambitious reform, however, is the treatment of immigrants in the criminal justice system. An unprecedented focus on immigration enforcement targeted at “felons, not families” has resulted in a separate system of punitive treatment reserved for noncitizens, which includes crimes of migration, longer periods of pretrial detention, harsher criminal sentences, and the almost certain collateral consequence of lifetime banishment from the United States. For examples of state-level solutions to this predicament, this Essay turns to a trio of bold criminal justice reforms from California that (1) require prosecutors to consider immigration penalties in plea bargaining; (2) change the state definition of “misdemeanor” from a maximum sentence of a year to 364 days; and (3) instruct law enforcement agencies to not hold immigrants for deportation purposes unless they are first convicted of serious crimes. Together, these new laws provide an important window into how state criminal justice systems could begin to address some of the unique concerns of noncitizen criminal defendants.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"91 1","pages":"12-38"},"PeriodicalIF":0.4,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73247816","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":"Lost in Translation? Examining the Role of Court Interpreters in Cases Involving Foreign National Defendants in England and Wales","authors":"A. Aliverti, Rachel Seoighe","doi":"10.1525/NCLR.2017.20.1.130","DOIUrl":"https://doi.org/10.1525/NCLR.2017.20.1.130","url":null,"abstract":"Court interpreters have seldom been featured in studies on the criminal courts. Until recently, cases requiring court interpreters were rare and marginal. The peculiarity and historical rarity of these cases may explain the lack of academic consideration of the work of court interpreters in the criminal justice literature. Rapid demographic changes brought about by mass migration, however, are changing the make-up of criminal justice proceedings, rendering court interpreters key participants and inexorable aides for the everyday running of the criminal justice system. This article examines the increased reliance on interpreters and the nature of their involvement in criminal justice proceedings. It will explore the relationship between interpreters and defendants, on the one hand, and between interpreters, counsels, and judges, on the other. Drawing on empirical data stemming from a research project on foreign national defendants conducted in Birmingham’s criminal courts, we explore issues of trust and reliability underpinning the intervention of court interpreters and the implications of these interventions for the defendant’s case. The use of interpreters aims first and foremost to ensure the defendant’s right to defense. Yet, as we show, their intervention is often propelled or hindered by instrumental, procedural, or logistical reasons, intimately linked to the rapid transformation of the demography of defendants and the privatization of services related to the criminal justice system.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"14 1","pages":"130-156"},"PeriodicalIF":0.4,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85439965","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}