Criminal Justice Practice Research Articles

Between Reparations and Repair: Assessing the Work of the ICC Trust Fund for Victims Under Its Assistance Mandate

The practice of international justice has made a significant shift from narrowly focused criminal accountability to a broader and more holistic understanding of the totality of victims’ justice needs. In particular, international criminal justice is concerned with victims of mass atrocity crimes, whose needs are profound and whose capacities are limited by the experiences of gross and systematic violence. These needs include individual and communal capacity building to engage in criminal processes as well as remedy and repair in the aftermath of criminal procedures. The Trust Fund for Victims represents, in many ways, the epicenter of this shift in international law practice, as a unique institution that has a central role in providing both an assistance and reparations mandate under the International Criminal Court (Rome) Statute. This article addresses how well that task has been operationalized in practice by the Trust Fund. In parallel, the assessment has a wider purview by allowing a broad engagement with the challenges, complexities and realties on the ground that shape the enforcement of reparations for victims, as well as molding institutional responses by intervenors including the Trust Fund. Given the challenges of successfully implementing reparations there is often little time or capacity to measure (as one goes along) what has worked effectively and what has not. International organizations, states, courts and civil society have made consistent calls for evidence of success, failure and/or the value of reparations. At the simplest level, because most human rights and humanitarian law treaties provide for the right to a remedy, assessing if remedies work in practice is critical to understanding if state obligation has, in fact, delivered. This article provides concrete, contextual and novel assessment of the delivery of reparations for systematic human rights violations, offering timely and relevant analysis for the international criminal court in particular and scholars/practitioners concerned with the conceptualisation and delivery of reparations in practice. The analysis and data presented is based on unique access to the Trust Fund's operations with on the ground assessment of the programming for assistance and reparations in Northern Uganda. The data underpinning the research findings is singular and makes a new contribution to the literature and practice of international criminal justice.

Judicial Independence: The Master Narrative

In this paper, I draw upon biographical narrative accounts of retired Scottish judges to provide insight about how the concept of judicial independence operates in the routine practice of criminal justice. This oblique and often reified concept is given new meanings and understandings through the lived experiences of these retired judicial actors, demonstrating the role of judicial independence and impartiality as the ‘master narrative’ of the judiciary in their routine work. This research points to some of the adaptive strategies necessary for the maintenance and use of the concept in the everyday challenges of sentencing practice. In particular, I argue that although judicial independence represents an aspirational and mythological conception of judicial work, it nonetheless carries important meanings and has material effects in everyday criminal justice practice. Moreover, the boundaries of the judicial role in daily practice may be less sharply defined than strong ‘Olympian’ interpretations of judicial independence might otherwise suggest.

The digital witness: The role of digital evidence in criminal justice responses to sexual violence

While the low conviction rate for cases of sexual violence is often justified by the so-called ‘he-said-she-said’ nature of these cases, the increasing presence of digital evidence has begun to challenge this justification. This digital evidence can provide new opportunities for intervening in and prosecuting sexual violence. However, it may also be used against complainants or deemed still insufficient for proving guilt. Thus, while digital evidence may be challenging typical criminal justice responses to sexual violence, it may equally be utilised to buttress entrenched stereotypes and criminal justice practices that lead to complainant dissatisfaction and serve to support low conviction rates. I draw on critical feminist legal theory, feminist engagements with digital technology and sexual violence, and visual criminology to theorise the burgeoning role of the digital witness in sexual violence cases.

Creating spaces for change: Engaging civil society to harness change in criminal justice practice

In a context of neoliberal penality, crime is falling yet prison populations continue to rise. Governments profess to recognise the problem yet have had little impact on underlying trends in criminal justice practice. This article reports on a Scottish initiative to try and disrupt this cycle through broadening the base for deliberation upon justice matters to include civil society. In so doing, we sought to build upon an emerging civic engagement evident in the wake of the 2014 Independence Referendum. Our premise was that to effect change requires that we look beyond policy fixes to the values and the socio-cultural drivers that take practice in particular directions. We conclude with a reflection on the obstacles to change.

BUKTI ELEKTRONIK SEBAGAI ALAT BUKTI YANG SAH DALAM HUKUM ACARA PIDANA

The Criminal Procedure Code as a general criminal procedure does not recognize electronic evidence as one of the admissible types of evidence. In practice, electronic evidence is also used as an admissible evidence to prove the criminal offenses in court. From the results of the discussion it can be concluded that electronic evidence in criminal procedure law is a dependent evidence and an independent evidence (substitution of letter proof if it meets the principle of functional equivalent approach and expansion of evidence) as specified in several special laws and instruments issued by the Supreme Court. The electronic evidence is not regulated in the Criminal Procedure Code as a lex generalis, however, to achieve material truth it can also be used as a valid evidence for the provision of all types of criminal offenses in court. It is based on recognition in the practice of criminal justice, some special laws, and instruments issued by the Supreme Court.Keywords: electronic evidence, admissible evidence, criminal procedure code, proof

Science, Technology, or the Examiner Experience: What Influences Jurors' Judgments About Forensic Science Testimony?

The impact of forensic science evidence on jurors’ judgments is critically important to the criminal justice system. The assignment of low or high weight to such testimony can be the difference between acquittal or conviction. Many of the traditional forensic sciences (e.g., fingerprints and bitemarks) draw their strength largely from the subjective judgments of examiners who testify about whether evidentiary prints or other markings are consistent with (or “match”) known markings from a person or object. In an online experiment (Experiment 1) and a realistic jury simulation using actual jurors or jury-eligible adults (Experiment 2), this paper investigates three factors that might affect how jurors think about and use forensic science evidence. These factors are (a) whether the forensic science method had been scientifically tested, (b) the forensic scientist’s background and experience, and (c) how sophisticated the forensic science technology is. The results show a strong and consistent effect for examiner background and experience on evidence strength judgments, no effect for forensic technology sophistication, and a limited and inconsistent effect for scientific testing (present in the online experiments, absent in the realistic jury simulation). These findings raise concerns about potential undue influence of examiner background and experience on jurors’ judgments, and lack of clear influence of scientific testing. The implications of our findings for criminal justice practices and policies are considered.

Criminal Justice Contact and Relapse Among Patients Seeking Treatment for Opioid Use Disorder

The rapid rise in opioid use has recently contributed to several pressing concerns, including an unprecedented number of fatal overdoses, a marked increase in treatment admissions, a spike in emergency department visits, and a significant proportion of adults who test positive for opioids at the time of arrest. The majority of arrestees who test positive for opioids after being booked into jail also report prior engagement with a substance use treatment program, highlighting the need to address posttreatment substance use and involvement in the criminal justice system. The current study was conducted to untangle the posttreatment substance use–arrest relationship and better understand how one may influence the other. Analyses conducted with 396 adults, drawn from a nationwide sample of patients seeking treatment for opioid use disorder, demonstrated that posttreatment arrest increased the likelihood of substance use, but the evidence suggested that this relationship was not reciprocal. These results have significant implications for criminal justice practices with regard to using alternatives to arrest as methods to minimize posttreatment substance use.

Black women, victimization, and the limitations of the liberal state

This article challenges contemporary understandings of the US carceral state by confronting the realities of exceptionally high rates of homicide victimization among Black women and considering the implications for equality and understandings of the carceral state. We propose that neither the US state nor the US penal order can be fully understood without taking account of the exceptionally high rates of violence to which Black women are exposed. Conceptions of the carceral state that do not situate criminal justice within the larger context of raced and gendered subject formation depict criminal “justice” as an arena composed almost entirely of adult males. This obscures the realities of how state form contributes not only to criminal justice practices but also to risk of violence. Black women are uniquely situated at the intersection of risk of violence, and risk of experiencing the collateral damage of the carceral state. Without significant attention to issues of connectivity and care, which are direc...

Doxing or deliberative democracy? Evidence and digital affordances in theSerialsubReddit

This study examines how a specific digital space—the Reddit message board dedicated to a discussion of the murder case featured on the podcast Serial—affords its users the ability to transcend the spatiotemporal limitations of traditional journalistic and criminal justice practices in the collection, validation, and deliberation of evidence. The digital discourse on the Serial subReddit can be understood, using concepts derived from network society theory (Castells, 2005) as a form of deliberative digital democracy (Dahlberg, 2011) in which crowdsourced evidence bears the weight of establishing the “rational” nature of a constructive, public discourse about practices employed by democratic institutions. However, the same evidence serves to reveal the limits of this form of digital deliberation when it is used in the practice of “doxing”—the online, public posting of private information about private individuals (Davison, 2012). This tension reveals the complicated relationship between democracy, privacy, and emerging technologies.

Punishment justifications in rape cases: a community study

Norway is one of the countries with the most progressive criminal justice systems in the Western world. Traditionally, the Norwegian criminal justice system has been mainly based on treatment and deterrence perspectives. While it is believed that criminal justice practices should be in accordance with public attitudes, few studies in Scandinavia have investigated public attitudes towards criminal justice sanctions in a methodologically sound manner. The current study is the first to investigate the attitudes of the Norwegian public towards punishment of rapists. In a Norwegian community sample (N = 475) from 2005, participants found the typical sentencing severity of a convicted rapist too lenient. The participants did report that as a global sentencing orientation, they preferred incapacitation. When presented with a specific rape case, their sentencing judgements were oriented towards both incapacitation and retribution, but their global orientation were not related to their specific judgements. Aggravating circumstances (e.g. violence was used) were found to influence the participants’ judgements more than when no aggravating circumstances were present (e.g. no violence was used). Few gender or educational differences were found, which indicates that these attitudes towards punishment of rapists are quite consistent across demographical groups.

CORRELATION BETWEEN THEORY OF CRIMINAL LIABILITY AND CRIMINAL PUNISHMENT TOWARD CORPORATION IN INDONESIA CRIMINAL JUSTICE PRACTICE

The question of the correlation between theory of criminal liability and criminal punishment on criminal acts committed corporation is important to investigate in order to provide justification for the criminal prosecution of corporations. How a mistake should be constructed from a corporation associated with the theory of corporate criminal liability. As a consequence of the improper condition on the corporate views of whether the corporation has made a criminal offense can be avoided as part of discretion in running the business. If these obligations are not met, the corporation can be condemned for committing crime. The practice of criminal justice to the determination of criminal liability for corporations is not fully in accordance with the theory of corporate criminal liability. In fact, the court decision does not yet reflect a consistent correlation between the theory of criminal liability and criminal punishment on criminal acts of the corporation.Keywords: criminal liability, corporate, criminal justice.

Co-option, coercion and compromise: challenges of restorative justice in Victoria, Australia

Restorative justice (RJ) encompasses a widely diverging set of practices whereby those most affected by crime are encouraged to meet, to discuss the effects of harms caused by one party to another, and to agree upon the best possible redress of harms when appropriate. In its inception in the late 1970s, RJ was conceptualized and developed as an alternative to formal criminal justice practices. Since this time, however, RJ has largely moved from being an alternative to criminal justice practices to an ‘alternative’ practice within criminal justice systems. This institutionalization has resulted in the significant growth of RJ practices, but has also resulted in RJ being used for criminal justice system goals that are at odds with the needs of victims or offenders. This paper examines the use of the Youth Justice Group Conferencing Program in Victoria, Australia. Drawing from interviews with conference conveners, our research highlights problems related to administrative ‘constraints’ and ‘co-options’ in conferencing in terms of referrals, preparation of conference participants, and victim participation. Following presentation of findings, we conclude with a discussion of implications for the use of RJ within a highly institutionalized setting.

The core conditions of peer mentoring

Peer mentoring is an increasing feature of UK criminal justice, yet very little is known about the micro dynamics of this practice. Drawing upon an ethnographic study, this article identifies a number of ‘core conditions’ underpinning the practice, including caring, listening and encouraging small steps. Mentors and mentees highlight these conditions as antidotes to what they often perceive as disconnected, unhearing and technocratic criminal justice practices. Peer mentoring is claimed to release suffering, to unburden the self of grief and to explore new directions, given that mentors ‘genuinely care’ and are tolerant of slip-ups. Respondents offer valuable insight into the experience of being intervened upon and advocate for manageable shifts, which could meaningfully improve services for a range of vulnerable and stigmatized populations. However, the article also introduces tensions, including the expectation of emotional toil for little financial reward and the context of an increasingly results-driven criminal justice system.

The Political Roots of Racial Tracking in American Criminal Justice. By Nina M. Moore. New York: Cambridge University Press, 2015. 406 pp. $30.99 paperback.

The Political Roots of Racial Tracking in American Criminal Justice. By Nina M. Moore. New York: Cambridge University Press, 2015. 406 pp. $30.99 paperback.In April 2016, Black Lives Matter (BLM) protesters clashed with Bill Clinton over his role in the passage of the 1994 Crime Bill and Hillary Clinton's use of the term super predators to describe the involvement of black youth in criminal offenses. Demonstrators sought to highlight how policymakers and the general public construct narratives and social policies that fuel misperceptions, thereby deepening racial inequality in criminal justice practices throughout the United States. Political pundits largely glossed over the substance of protester concerns because the crime bill did not explicitly target specific racial groups. To address the essence of the BLM critique would require a theory of the policy process that explains racial inequality in criminal justice experiences. Nina Moore's book, The Political Roots of Racial Tracking in American Criminal Justice, provides such a policy process framework.Moore examines the mechanisms that give rise to racial disparities in the criminal justice system and explains why these inequities persist despite considerable national attention to issues of fairness and justice. Her book makes two arguments. First, Moore argues that there are two racially distinct modes of criminal law enforcement in the United States: one white and one black. She contends that racial tracking in the criminal justice system must be evaluated sequentially, from initial contact with police officers to differences in plea negotiations with prosecutors, both of which culminate in racialized differences in pretrial court decisions and prison experiences.The second argument advanced by Moore is that racial tracking in criminal justice persists precisely because policymakers and the American public allow different modalities of law enforcement, even when stark differences in applications of justice contravene constitutional rights to due process and equal protection. She presents a basic principles policy process that anchors empirical insights and disagreements in the study of policymaking with commonalities expressed in varied policy perspectives. By drawing on six policy process axioms-principles that focus on politics, systems, opportunities, multidimensionality, power players, and problemprocess kinship-Moore articulates a seventh maxim, the public origins principle, that fully integrates these perspectives to produce a theory of racial tracking in criminal justice.This is an impressive piece of socio-legal scholarship. Five empirical chapters thoroughly enumerate and rigorously evaluate how colorblind Supreme Court decisions, public opinion polls, political party politics, and congressional agendas impede racial equality in criminal justice. Moore critically analyzes twenty-three Sixth Amendment cases affecting the right to counsel, eighteen Fifth Amendment cases, and twenty of the most noted capital punishment decisions. In each instance, she shows how the Court's reasoning and decision-making process represents a longstanding use of colorblind jurisprudence that is not localized to any one decision or to a handful of cases; instead, her work uncovers how the Court systematically legitimates persistent racial inequalities in law enforcement methods.Professor Moore also presents an in-depth analysis of public opinions on racial progress, criminal victimization, and criminal justice policy in America. …

Preventing Wrongful Convictions: An Analysis of State Investigation Reforms

As more innocents are exonerated and researchers learn more about the causes of wrongful convictions, criminal justice practices have been altered to reduce the number of erroneous convictions, although reforms have varied widely in scope and substance throughout the nation. In this article, we provide an analysis of state-level investigative reforms important to the production of wrongful convictions as of mid-2016. Specifically, we collect and describe reform efforts in three investigatory areas: eyewitness identification, forensics, and interrogations. We then discuss wrongful conviction reforms and the innocence movement more generally, focusing on the importance of continued research into wrongful convictions as a critical policy issue in criminal justice.

The foreign tactical and psychological methods of interrogation directed to receiving reliable information

The article describes modern foreign interrogation techniques aimed at checking the accuracy of the information in a criminal case. Based on the analysis of various aspects of the application of the techniques under consideration, the author concludes that it is advisable to discuss relevant techniques in the national forensic science in order to define the prospects and possibilities of implementing recent criminal justice practices in Russia.

A Pimp's Game: A Rational Choice Approach to Understanding the Decisions of Sex Traffickers

We employ a rational choice framework to understand the conditions under which sex traffickers allow their victims access to telecommunications devices while under their control. We posit that sex traffickers are rational actors who make calculated decisions regarding whether to allow their victims access to the Internet and cell phones. We hypothesize that sex traffickers allow younger victims and those they did not defraud in the recruitment process greater access to telecommunications devices because these decisions maximize their payoffs with minimal risk. However, we hypothesize that younger victims’ access to telecommunications devices is conditional on whether they have been defrauded in recruitment. In order to test these hypotheses, we deployed a survey to 115 victims of sex trafficking in the United States to learn about how they were recruited by their sex trafficker and the level of access they had to technology while under their sex trafficker's control. We find support for all of our hypotheses. The results have serious implications for criminal justice policy and practice.

Recovery and desistance: what the emerging recovery movement in the alcohol and drug area can learn from models of desistance from offending

In the last 20 years, the recovery movement in alcohol and other drugs has emerged as a major influence on alcohol and drug policy and practice in the UK, US and Australia. In roughly the same period of time, the desistance movement has become increasingly prominent in academic criminology, and is increasingly influential in criminal justice practice, particularly in the area of probation. Furthermore, the populations involved in recovery and desistance research have significant overlap, yet there has been little shared learning across these areas. The current article explores the evolution of thinking around desistance and what lessons it might offer conceptual models of recovery. It will be argued that one of the most important shared assumptions relates to identity change, and the extent to which these identity changes are intrinsically social or ‘relational’. The paper will advance a social identity model as a mechanism for understanding the journey to recovery or desistance and the centrality of reintegration into communities for a coherent model and public policy around addiction recovery.

The Nonexceptionalism Thesis

Contrary to the assumption that “9/11 changed everything,” post-2001 criminal justice practices in the area of terrorism show a surprising consistency with pre-2001 criminal justice practices. This article relies on an analysis of over 300 terrorism prosecutions between 2001 and 2010, as well as twenty full trial transcripts, content coding, and traditional legal analysis, to show the continuity of criminal justice over this time in regard to some of the most controversial supposed developments. This continuity belies the common assumption that current extreme policies and limitations on due process are a panicked response to the terror attacks of 2001. To the contrary, terrorism cases appear to have shed light on the direction in which the United States was heading for decades.

Minor Attraction: A Queer Criminological Issue

Despite a cultural tendency to sexualize youth, individuals who are primarily attracted to minors are subject to suspicion and stigma across society, extending into criminology and criminal justice. The prevailing assumption is that minor-attracted persons (MAPs) are mentally ill and predatory. However, there exists evidence that minor attraction is a sexual orientation, and the parallels between the treatment of MAPs and LGBT populations are striking. Employing queer criminology’s use of deconstructionist techniques, we address the current state of criminology and criminal justice, which sees MAPs as a suspect population warranting formal control. We then argue for the use of queer criminology as a framework for future research with minor-attracted populations, which could have important implications for criminal justice practice and policy.