{"title":"The Right to Reintegration","authors":"Ekow N. Yankah","doi":"10.1525/nclr.2020.23.1.74","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.1.74","url":null,"abstract":"“Western” democracies take an uneven view of the state’s role in reintegrating the incarcerated following punishment. Particularly in the United States, where retributivism remains punishment’s dominant justification, questions of punishment center on how wrongdoers ought to suffer for transgressions. Thus, reintegrative programs are viewed as a question of policy preference for various jurisdictions, and a question of grace for the state. A republican political theory, centered on our civic bonds, emphasizes different commitments. On this view, punishment is justified where a citizen attacks another in ways that deny their civic equality and undermine our ability to maintain a common civic life. But the same justification that requires protecting civic equality through punishment compels the state to reintegrate offenders after punishment; the right to punish and the obligation to reintegrate are complementary political duties. As such, reintegrative policies are not merely the state’s choice but rather a state duty and an offender’s right. This article explores the obligations the state owes ex-felons in reintegrating them into civic society across a range of political and civic rights. It also addresses reintegration’s important role in ameliorating the racial scars of American criminal punishment.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"34 1","pages":"74-112"},"PeriodicalIF":0.4,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88284451","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 as Regulation","authors":"M. Feeley","doi":"10.1525/nclr.2020.23.1.113","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.1.113","url":null,"abstract":"Problem-solving courts and restorative justice programs provide important new alternatives to cope with recurring problems in the criminal justice process. But they are much more. They are harbingers of a new theory of the criminal justice process that challenges traditional accounts in fundamental ways. Although practices akin to problem-solving courts and restorative justice have long operated outside or below the radar of the theory of criminal law and the adjudicative process, over the past few decades these practices have come to the fore and are now supported with full-blown theories, which threaten to displace traditional accounts of criminal responsibility, criminal liability, and indeed the core features of the criminal justice process. The new theories are based on theories of regulation, where the objective is not so much to enforce the law as it is to secure compliance to the law in order to facilitate harm reduction and restore social order. Nowhere is this new development so clearly seen as in the opening chapters of John Braithwaite’s important book, Restorative Justice and Responsive Regulation. In this book, Braithwaite offers a full-throated theory of the new criminal justice process that is based on recent developments in regulatory theory and, most particularly, responsive regulation, which Braithwaite helped to develop. This model is implicit to varying degrees in any number of recent developments in the criminal justice process, and in this paper, I argue it has the potential for displacing the classical theory of criminal law.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"23 1","pages":"113-138"},"PeriodicalIF":0.4,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74536825","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":"Characterizing Multi-door Criminal Justice","authors":"Tali Gal, Hadar Dancig-Rosenberg","doi":"10.1525/nclr.2020.23.1.139","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.1.139","url":null,"abstract":"This article provides an empirical, comparative analysis of three criminal justice programs that reflect different social and ideological accounts: community courts, arraignment hearings, and restorative justice. The study draws on empirical findings that have been collected over three years in Israel, through observations and archival documentation of these mechanisms. Using the Criminal Law Taxonomy developed elsewhere by the authors as an analytical tool, the comparison is based on characteristics that relate to the structure, content, stakeholders, and outcomes of these justice mechanisms, emphasizing the plurality we have today in multi-door criminal justice systems. The comparative analysis highlights differences and similarities among various justice mechanisms, and offers policy makers and criminal justice practitioners important insights for referring different cases to various mechanisms.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"23 1","pages":"139-166"},"PeriodicalIF":0.4,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73458085","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":"Many Doors to International Criminal Justice","authors":"J. Braithwaite","doi":"10.1525/nclr.2020.23.1.1","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.1.1","url":null,"abstract":"Responsibilities to protect and prevent elite crimes are best energized by enforcement that walks through many doors. Effective deterrence is rarely delivered by the International Criminal Court. Yet deterrence is possible when it patiently cumulates through many doors. Likewise truth, justice, and reconciliation can achieve little through one door and much through many. Opening more doors to the complexly cross-cutting character of survivor guilt with mass atrocities can better open possibilities for future prevention and reconciliation than simply doors to courtrooms that find a criminal on one side of complex sequences of atrocity. The Nuremberg and Tokyo War Crimes Trials opened quickly after World War II. They did not prove to hold keys to truth and reconciliation for Germany until the Eichmann trial finished in Jerusalem in 1962. Why? Still today, non-confession by the U.S. to Hiroshima/Nagasaki as war crimes has meant truncated Japanese reconciliation. Different kinds of doors are needed with crimes like the Dresden and Tokyo fire bombing, the rape of Nanjing and the “comfort women” issue. These have included citizens tribunals, truth commissions, and indigenous justice in cases like Bougainville that rejected the truth commission model. When we reflect upon door diversity, transitional justice turns out not to be very focused on justice or international criminal law, and not to be at all transitional, but rather a maze of doors to justice of diverse kinds that open or close across the longue duree (as developed in the work of Susanne Karstedt).1","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"49 1","pages":"1-26"},"PeriodicalIF":0.4,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91096824","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 Price of Criminal Law Skepticism","authors":"Douglas Husak","doi":"10.1525/nclr.2020.23.1.27","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.1.27","url":null,"abstract":"A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"32 1","pages":"27-59"},"PeriodicalIF":0.4,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73885682","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":"Equality in Multi-door Criminal Justice","authors":"Richard A. Bierschbach","doi":"10.1525/nclr.2020.23.1.60","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.1.60","url":null,"abstract":"As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex. This essay explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders. But we need not view that as fatal to multi-door criminal justice. Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals. At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones. The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal—or unequal in more palatable ways—than what we have now.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"73 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84280618","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":"Restorative Justice in Severe Times","authors":"L. Walgrave","doi":"10.1525/nclr.2019.22.4.618","DOIUrl":"https://doi.org/10.1525/nclr.2019.22.4.618","url":null,"abstract":"Restorative justice is based on mutual respect and inclusion through dialogue. This approach may be threatened in current severe times, characterized by rampant individualism and mutual distrust. In crime and justice issues, exclusion and punishment are pushing away approaches based on inclusion and persuasion. In such a socio-cultural climate, restorative justice is threatened indeed to being co-opted as an extension to the predominant punitive and controlling tendency. However, countervailing forces persist in social life, social practice, and in the arts. A social-scientific tendency is also aware of its social responsibility and seeks to serve the quality of social life based on more mutual respect, solidarity, and taking active responsibility. Restorative justice can be a part of these countervailing forces, if it safeguards its roots in this socio-ethical groundstream. It may be a spearhead of what we can call a “criminology of trust,” a criminology that understands that all policy regarding crime and justice issues must be grounded in respect, inclusion, and persuasion. Particularly, restorative justice’s contribution to this is twofold. First, it offers a realistic and more positive alternative to detrimental punitiveness. Second, it contributes to de-dramatizing and demystifying the image of crime and criminals to more realistic dimensions (which are in themselves serious enough).","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"65 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87457802","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":"Risk, Populism, and Criminal Law","authors":"J. Pratt, Michelle Miao","doi":"10.1525/nclr.2019.22.4.391","DOIUrl":"https://doi.org/10.1525/nclr.2019.22.4.391","url":null,"abstract":"Criminal law is being broadened from its normative and moral response to wrongdoing to include the capacity to act as a preventive force. As well as reacting to crime that has been committed, it also attempts to control the risk of future crime. In so doing, preventive criminal law makes use of hybrid and retrospective legislation, while reversing or lowering burdens of proof if these are thought to unfairly advantage offenders/defendants, raising important human rights issues. We argue that this emphasis on controlling risk was the response to issues of uncertainty and insecurity generated by post-1970s economic and social restructuring. Where, though, do these criminal law characteristics of “risk society” now sit, given the contemporary rise of populist politics? Populism promises an end to risk and its attendant uncertainties and anxieties, but it is already extending rather than reversing the preventive capacity of criminal law. This is because populism continuously needs to find new victims that it embraces and pledges to defend against their assailants, law-breakers or otherwise, real or imagined. The focus of risk control thus embraces new populations—refugees, asylum seekers, immigrants of all kinds, legal or otherwise. Conventions such as the rule of law and the separation of powers that might previously have limited such interventions are brushed aside as outmoded examples of elitist thinking. Instead, security is prioritized over residual concerns about due process, while also prioritizing public protection over individual rights.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"17 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91067742","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":"“We’ll Take the Tough Ones”","authors":"Chrysanthi S. Leon, Corey S. Shdaimah","doi":"10.1525/nclr.2019.22.4.542","DOIUrl":"https://doi.org/10.1525/nclr.2019.22.4.542","url":null,"abstract":"Expertise in multi-door criminal justice enables new forms of intervention within existing criminal justice systems. Expertise provides criminal justice personnel with the rationale and means to use their authority in order to carry out their existing roles for the purpose of doing (what they see as) good. In the first section, we outline theoretical frameworks derived from Gil Eyal’s sociology of expertise and Thomas Haskell’s evolution of moral sensibility. We use professional stakeholder interview data (N = 45) from our studies of three emerging and existing prostitution diversion programs as a case study to illustrate how criminal justice actors use what we define as primary, secondary, and tertiary expertise in multi-agency working groups.\u0000 Actors make use of the tools at their disposal—in this case, the concept of trauma—to further personal and professional goals. As our case study demonstrates, professionals in specialized diversion programs recognize the inadequacy of criminal justice systems and believe that women who sell sex do so as a response to past harms and a lack of social, emotional, and material resources to cope with their trauma. Trauma shapes the kinds of interventions and expertise that are marshalled in response. Specialized programs create seepage that may reduce solely punitive responses and pave the way for better services. However empathetic, they do nothing to address the societal forces that are the root causes of harm and resultant trauma. This may have more to do with imagined capacities than with the objectively best approaches.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"22 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76884742","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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