Criminal Justice Model Research Articles

Drug and Specialist Courts Review: Final Report

This report is the product of a review commissioned by the Queensland Government to develop options for the reinstatement of a drug court in Queensland and the development of an overarching framework for Queensland’s specialist courts and court programs. The report aimed to develop a comprehensive criminal justice model that identifies a range of interventions from the time of first contact with police, to arrest, summons and bail, conviction and sentence through to release on parole. It recognised that while drug courts are an important part of the criminal justice continuum, they are only one of a number of responses to the extensive problem of substance abuse-related crime. The report identified the demand for alcohol and other drug criminal justice interventions in Queensland, the drug treatment services provided in that state and proposed a number of foundational principles that should underpin the range of criminal justice interventions. It examined the conceptual foundations that that underpin an assessment and treatment framework, the assessment and treatment of individuals with alcohol and other drug issues in Queensland, the range of dispositional options available for offenders with drug and alcohol issues, discussed whether drug courts work, and for whom, provides an overview of best practice standards for drug court and proposes a new drug court model for Queensland.

Procedurally just cooperation: Explaining support for due process reforms in policing

PurposeWe explore criminal justice workers' (CJW) support for due process reforms in policing. We build on and integrate four related literatures—scholarship analyzing 1) process-based regulation, 2) the generality of procedural justice, 3) the bilateral and dialogical nature of legitimacy, and 4) the tensions between the due process versus crime control models of criminal justice. We hypothesize that when citizens exercise procedural justice in their decisions about how to respond to legal authorities' inquiries and directives it enhances “rights legitimacy” and increases CJW's support for the due process model of criminal justice. MethodsWe analyze data from a nationwide sample (N=579) of CJW. We examine whether CJW's perceptions that citizens are fair and respectful toward police are associated with their support for due process reforms. ResultsProcedurally just cooperation predicts support for due process reforms among police officers and other CJW, both before and after a highly publicized negative police-citizen encounter (the police killing of Michael Brown), and regardless of respondents' race, gender or career length. ConclusionsThe findings support the generality of the process-based model and the bilateral and dialogical nature of legitimacy.

Chapter Four: Quarantine and the Problem of the Third Man

Non-retributive attempts to justify punishment are open to some of the same objections that retributive attempts are subject to. Should we return to the preventive Quarantine Model? The attempt to justify that approach by analogy to medical quarantine fails. But Pereboom, Slobogin, and Robinson have raised a problem that I would call the Problem of the Third Man: the problem of the sane and rational but undeterrable offender. Pereboom raises it in support of Quarantine, and the inability to deal with it must be added to the objections to retributive and non-retributive theories of punishment; the problem is to deal with it without adopting the Quarantine Model of criminal justice. The “double track” solution, I suggest, amounts to the tacking together of two unacceptable models and in any event is unstable.

Crime and Punishment in Asia

The dominance of Western models of crime and criminal justice and the nascent emergence of “borderless” criminological insights precipitated by forces of globalization and transnationalization raises serious questions about their universal applicability to explain crime across time and space. Amidst the dearth of criminological work on Asia, this introduction to the Special Issue on “Crime and Punishment in Asia” commits itself to developing and honing the frontiers of an “Asian criminology” by drawing scholarly attention to the empirical and contextual specificities of the region. Such an effort is not directed towards demarcating “Asia” as a socially and culturally distinct geopolitical entity from the “West”. Rather, it is to critically reflect upon the alleged and actual variances between Asian and Western societies including the broader differences in social orientation – collectivism vs individualism and duty-based moral obligations vs rights-based beliefs respectively as well as documenting the heterogeneity and particularities within Asia. To that end, crime in South Asian and Southeast Asian contexts and political and economic changes which have given rise to novel “strains” of crime and newer criminal opportunities, remain under theorized. Ultimately, the advancement of an Asian criminological discourse in this special issue is not to merely acknowledge scholarly attempts that transpose current Anglo-Saxon models onto Asian empirical contexts or reject them, but transform existing theories and develop regional alternatives that are validated by and arise from particular empirical investigations into crime and criminal justice across Asia.

Opponent System in Criminal Procedure: Advantages and Disadvantages

As in the opponent system, also in the inquisitorial criminal justice, exclusive duty of proving the existence of a crime and the determination of the respective sentence is in the hands of the state and the main purpose of the two systems is to prevent self judgment by individuals. It is widely recognized that both systems have succeeded in achieving this goal. In another point of view, the purpose of the rules of criminal procedure in a democratic society is to ensure procedural fairness; which means to balance individual rights with the interests of society in general. In this context, the choice or change of the criminal justice model in each country relies mainly on the need to achieve these goals in the specific circumstances of that country. The article will discuss the advantages and disadvantages of the opponent system of criminal procedure, compared with the alternative of its most widely known: the inquisitorial system. The article will cover both the stage of criminal investigation and trial as well. In inquisitorial systems, these phases tend to merge into a single procedure, whereas in opponent systems, the scope of judicial control over the investigation phase is one of the most controversial points of the reform. DOI: 10.5901/ajis.2016.v5n2p79

Beyond Advocacy: Mapping the Contours of Victim Work.

In contrast to works on victim advocacy in specific organizational contexts, this article introduces the term "victim work" to capture the vast array of victim-related roles and tasks that have proliferated in recent decades. Data are derived from in-depth interviews with 30 "victim workers" in public and private agencies in two Midwestern states. The interviews revealed diverse work experiences that spanned hotlines, crisis response, legal proceedings, and postconviction support. Three themes emerged that characterize "victim work": flexibility, emotions, and the challenge of "fit"-the multifaceted difficulties of interacting with victims and agents of the justice system. Based on the findings, we offer a revised model of criminal justice vis-à-vis victims and implications for practice and future research.

Criminal Justice Models: Canadian Experience in European and Islamic Comparative Perspective

This paper examines Canadian models of criminal justice in a European and Islamic comparative perspective. The traditional model of Canadian criminal justice is a state centred adversarial one intended to punish, deter and/or rehabilitate offenders who are accorded formal due process protections embedded in a liberal constitutional and procedural rights. This model has been transformed recently into an ambiguously tripartite adversarial model through an overlay of victims’ rights at all stages. However, Canadian law also recognizes alternative processes through various forms of problem solving courts and sometimes comprehensive restorative justice approaches, the latter rooted in relational notions of rights. Meanwhile, criminal models in Europe have been evolving as well. The British common law model of criminal justice has arguably been transformed by statute into a state-centred managerial approach which has shifted the balance from due process toward crime control in a somewhat continental manner, while tolerating restorative justice experimentation at its periphery. On continental Europe, traditional judge-centered investigatory/accusatorial models have been the subject of adversarial due process reforms in differing ways, while “penal mediation” has been introduced to enhance victim satisfaction beyond historically available civil party recovery procedures. In the Muslim world, there has been a revival of Shar’iah law to varying degrees in many states, centered upon Islamic jurisprudential sources based on the Qu’ran, and Sunnah or Hadith, and reasoning through qiyas (analogy) to achieve consensus (ijma) in relation to the three traditional forms of Islamic offences with their distinct procedural characteristics. The victim-centred nature of flexible aspects of Islamic criminal law has led some to characterize Shar’iah as being suffused with restorative justice principles, despite widespread views to the contrary. Examination of the differences and similarities among these various models of criminal justice from “pure” and “applied” perspectives, leads to reflection on the capacity for criminal justice systems to evolve and change, and to tolerate significant levels of internal diversity, while demonstrating a wide range of potential forms for the instantiation of plausibly common values.

Chapter One. Two Models of Criminal Justice

Skepticism about moral responsibility has moved to the center of the debate about free will and responsibility, aided perhaps by recent work in neuroscience, and the number of important philosophers who consider themselves skeptics appears to be growing. The problem is that skepticism about responsibility, a skepticism that calls retribution and desert – the Retributive Model of criminal justice – into question as well, seems to leave us only utilitarian alternatives in criminal justice. But the utilitarian answers here are unsatisfactory. Deterrence without (non-utilitarian) side constraints is an easy target for counter-examples, and that has led many skeptics to the conclusion that the only justifiable approach to criminal justice is the therapeutic approach – the Quarantine Model. But a world without something very much like punishment, a world in which the approach to crime is to cure or to incapacitate, seems unacceptable, treating human beings (in the words of David Hodgson) “as vehicles for treatment to be manipulated for the general good.” The problem for the skeptic is to find a way out of this dilemma. My object is to isolate the desirable elements of punishment and incorporate them into an alternative institution focused in part on benefit to the offender. I call that institution “Correction.”

Gun crime incident reviews as a strategy for enhancing problem solving and information sharing

Over the last several decades, police departments and other criminal justice agencies have seen a shift toward a proactive problem-solving response to crime problems. This problem-solving orientation has often included an emphasis on expanded partnerships across criminal justice agencies as well as with a variety of community stakeholders, including researchers. This manuscript uses the issue of gun violence as a lens through which to examine the organizational and inter-organizational changes necessary to apply a data-driven, proactive, and strategic policing-led response to gun homicides and non-fatal shootings in four Midwestern sites. Each site adapted a unique data collection process and incident review. The data collection, incident reviews, and the varying models developed across the four cities, provide a reflection on corresponding organizational and inter-organizational changes that illuminate the movement toward this proactive, data-driven, problem-solving model of criminal justice. Fulfilling the promise of the incident reviews, however, requires internal organizational and cross-agency inter-organizational collaboration to align people, systems, and resources with this proactive, problem-solving model. Additionally, effectively implementing these organizational and inter-organizational changes appears dependent on commitment and leadership, collaboration and partnerships, data quality and availability, and training and communication within and across organizational boundaries.

The EU as a Promoter of Preventive Criminal Justice and the Internal Security Context

ABSTRACTThis paper discusses the current tendency in the EU to promote a criminal justice model focusing on prevention. In doing so, I examine the EU's internal security agenda with regard to criminal law and assess the extent to which this strategy fits the picture of an European Area of Freedom, Security and Justice placing equal value on freedom, security and justice. I also consider the external dimension to the EU's security program by examining the extent to which the EU benefits from the dual layer of security action provided for in the Treaty on the Functioning of the European Union and the Treaty of the European Union, or whether such double action creates unnecessary complexity. I contrast the current aspirations for more security and prevention in EU criminal law with the Commission's recent communication on the effective implementation of EU policies through criminal law. This communication stresses the importance of ensuring coherence in EU criminal law, while also respecting national diversity and serving the citizens. In addition, I discuss the extent to which the EU's promotion of preventive criminal justice risks turning the EU into a disintegrator instead of an agent of European values (depending on what these values are intended to mean in practice).

A Justiça Consensual na Construção da Cidadania: Uma Reflexão dos 20 Anos de Aplicação das Medidas Alternativas da lei 9099/95.

Há duas décadas, a Lei 9099/95 consolidou novel modelo de justiça penal consensual para a os delitos de menor potencial ofensivo através da conciliação e aplicação de medidas despenalizadoras. A transação penal e a suspensão condicional do processo são as medidas despenalizadoras previstas na referida Lei. São institutos voltados à prevenção de outros delitos e à reinserção social do infrator a partir da distribuição da justiça com aplicação conjunta pelo Judiciário, Ministério Público, vítima e comunidade, representada pela sociedade civil organizada. Esse modelo de justiça restaurativa não retira o autor do fato do convívio social e proporciona o cumprimento das penas em um ambiente propício para a reflexão sobre seu papel na sociedade, seus direitos e deveres, seu compromisso consigo mesmo e com a coletividade. Esse estudo visa demonstrar que as medidas alternativas à prisão previstas na Lei 9099/95, além de resposta penal eficaz, pode atuar na construção da cidadania, como instrumento de materialização dos direitos fundamentais, com base nas experiências do programa desenvolvido no Distrito Federal a partir das parcerias entre o Ministério Público do Distrito Federal e Territórios e a Sociedade Civil.

Protocol at the Crossroads: Rethinking anti-trafficking law from an Indian labour law perspective

As we approach the fifteenth anniversary of the United Nations Trafficking Protocol, we can discern several phases of its diffusion, materialisation and interpretation in domestic criminal law regimes across the world. Although not exclusively preoccupied with sex work and sex trafficking anymore, the fact remains that the inordinate attention on trafficking in Western industrialised economies is disproportionate to the extent of the problem. Only 7% of the world’s 20.9 million forced labourers are in developed economies while 56% are in Asia Pacific. Yet in BRIC countries like India, with a substantial majority of the world’s trafficked victims and where 90% of all trafficking is domestic, trafficking has gained policy resonance only relatively recently. Even as India remains an active site for sexual humanitarianism with international and local abolitionist groups actively targeting sex workers, the article argues that less developed countries like India can play a crucial role in reorienting international anti-trafficking law and policy. Towards that goal, this article offers India’s bonded, contract and migrant labour laws as a robust labour law model against trafficking in contrast to the criminal justice model propagated by the Trafficking Protocol worldwide.

Beyond Sexual Humanitarianism: A Post Colonial Approach to Anti-Trafficking Law

This Article examines from a postcolonial perspective a deep paradox in contemporary anti-trafficking law and discourse. The inordinate attention on trafficking in Western industrialized economies is disproportionate to the extent of the problem. Only 7% of the world’s 20.9 million forced laborers are in developed economies and the EU while 56% are in Asia Pacific. Yet in BRIC countries like India with a substantial majority of the world’s trafficked victims and where 90% of all trafficking is domestic, trafficking has little policy resonance. Trafficking was only recently criminalized as part of India’s extensive rape law reforms. India, however, remains an active site for sexual humanitarianism as American evangelical groups and local police dramatically raid and rescue ‘female sex slaves’ from gritty big-city brothels. As developing countries increasingly shape international anti-trafficking law and policy, this Article proposes two ways whereby the postcolony could be far more than a site of sexual humanitarianism. First, I offer India’s bonded, contract and migrant labor laws as a robust labor law model against trafficking that could inform international legal developments. This is in contrast to the criminal justice model propagated by the UN Trafficking Protocol worldwide. Second, through a case study of Indian sex workers’ mobilization against trafficking through selfregulatory boards in a red-light area, I show how sex workers are not simply passive victims and that community-based initiatives that make sparing use of criminal law could prove more effective than conventional anti-trafficking strategies.

Inquisitorial and Adversarial Expert Examinations in the Case Law of the European Court of Human Rights

The administration of criminal justice may require specific scientific or technical knowledge, for which experts are asked to provide advice to criminal courts. This article addresses the approach by the European Court of Human Rights to the input of expert evidence in domestic criminal proceedings. Two models, an inquisitorial model and an adversarial model of criminal justice, are identified and employed as a framework to analyse the case law. The article further elaborates on the use of these models, the sets of procedural requirements linked to both models, and the interference between them, providing insights capable of improving the gathering and use of technical and scientific information.

Child Pirates: Rehabilitation, Reintegration, and Accountability

Maritime piracy is among the original universal jurisdiction crimes. Denounced by customary international law and recognized as a breach of jus cogens, piracy also is defined and proscribed by a number of international treaties. Piracy has garnered recent international attention through its proliferation off the coast of Somalia and the resultant impact on international shipping and trade, not to mention loss of life. While incidents of Somali piracy are decreasing, piratical attacks are on the upswing elsewhere, for example off the Gulf of Guinea in Western Africa. The United Nations Security Council endorses a criminal justice model in response to acts of piracy. The Security Council thereby promotes a mechanism of judicialization and penalization. So, too, do the United Nations General Assembly, many states, international organizations (such as the International Maritime Organization), trade groups, and the shippers lobby. In the recent past, many detained pirates were perfunctorily captured and released. With the spread of the criminal justice model, however, pirates are increasingly facing prosecution in national courts, mainly in Kenya, Seychelles, and Maldives, but also in Germany, the US, India, France, Spain, Japan, and Somalia – among others.It has been estimated that approximately one-third of captured pirates are minors, that is, persons under the age of eighteen. This article explores issues of accountability, reintegration, deterrence and rehabilitation in the context of child pirates. It recommends modalities of restorative and reintegrative justice for child pirates that avoid the careless superficiality of immediate release and the retributive heavy-handedness of criminal trials. Regrettably, prevailing imagery that cloaks juveniles enmeshed in international crimes, for example child soldiers, does not favor this middle ground. Instead, this narrative imagery facilitates either perfunctory release (the faultless passive victim image) or criminal trials regardless of age (the demon and bandit image). Unlike the case with child soldiers, however, the position of UN entities when it comes to child pirates tends toward greater punitiveness – assuredly, a concerning development.Part I of this Article sets out data on piracy generally and addresses some specifics regarding juvenile involvement. Part II summarizes current efforts to criminally prosecute child pirates in instances where capture and release policies are not implemented. Part III explores why juveniles may end up in pirate gangs. Part IV critically assesses the deterrent effect of criminal prosecutions of juvenile pirates and proposes a new path, namely, one that leads toward restorative justice. Part V concludes.

Latin Justice

Latin Justice

Blood Diamonds and Mass Atrocities: Cutting a New Paradigm from Coarse Jurisprudence

150,000 human beings dead; 200,000 women raped; thousands of limbs amputated; countless children forced to kill their own parents, forced into sexual slavery, and forced into the battlefields; and 2.6 million persons displaced. These are just some of the facts and figures of the 10 year war in Sierra Leone. There is another number of significance: Nine. That is the number of individuals held criminally responsible for these atrocities. After more than 10 years and 300 million dollars, the Special Court for Sierra Leone (SCSL) convicted and sentenced just nine men. With the work of the court near complete, we are afforded an opportunity to evaluate its work and legacy. While writers have reviewed the work of international tribunals from a variety of perspectives, an examination of their sentencing legacy has been largely ignored or discounted. This article fills that lacuna in scholarship by advancing an innovative sentencing framework for international trials and articulating a new theory on atrocity sentencing that is both explanatory and instructive. My theory and framework both have general applicability to all international criminal tribunals, including the International Criminal Court (ICC). The article also contributes to the development of international law and legal scholarship in other ways. It is the first law review article to provide a comprehensive critique of all sentencing judgments of the SCSL. In addition to filling that gap, this article goes further to systematize the sentencing jurisprudence, identify key contributions, provide a normative assessment, link sentencing narratives to broader ones about the Sierra Leone conflict and atrocities, and advance an original theory and legal framework that breaks new ground on international sentencing and punishment. Consequentially, the article has immediate legal significance because, inter alia, the theory advanced herein speaks to punishing and sentencing Heads of State, an issue currently on appeal. Beyond its immediate impact, the article makes an enduring contribution by, inter alia, its legal and normative analysis that orders and illuminates ICL and develops a sentencing framework of general applicability. Parts II and III provide, respectively, a background to the Sierra Leona decade long war and a legal analysis of the cases and sentencing jurisprudence. Part IV offers an assessment of the SCSL’s sentencing legacy by identifying its key contributions to the ICL sentencing law and linking its sentencing discourse to narratives about the conflict, just war, legitimacy, justice, and Sierra Leonean society. Part V develops a normative assessment of the court’s judgments and sentencing practice. I argue that the judges at the SCSL have adopted punitive model for international criminal justice and that this reorientation is a positive development. I also criticize the court’s failure to develop a sentencing framework capable of implementing the punitive model. Part VI contributes an original theory and sentencing framework to international law and ICL scholarship. Here, I also re-conceptualize concepts at the heart of ICL and its sentencing practice, such as gravity, modes of liability, and the role of the accused. My theory pulls together these three major outcome determinative sentence variables to effectuate their harmonized consideration for the purpose of sentence allocations and just distribution of punishment among actors responsible for atrocity crimes. l call this theory “enabler responsibility” or “enabling atrocity.” I argue that enabler responsibility influences the sentence, especially of atrocity perpetrators at the very top of the hierarchy, even if unarticulated as a factor. The “enabler responsibility” theory closes the explanatory gap in sentencing judgments, including Charles Taylor’s punishment.

Governing through Crime Internationally? Bosnia and Herzegovina

The article adapts and applies the governing through crime framework to analyse the EU and Office of the High Representative (OHR) as international governing actors in Bosnia and Herzegovina. Limited, ambiguous and opportunistic use of techniques associated with governing through crime are most evident in relation to OHR, but only as one of a wider range of governing logics, and are linked to specific challenges of legitimation. The outward spread of criminal justice models and metaphors proposed by Simon is shown to be problematic in light of the breadth of activities that such a stance might admit to the framework.

Terrorizing Criminal Law

The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak of a ‘welcome the return to the criminal justice model’? This article considers the arguments in favour of prioritizing the prosecution of terrorist suspects and asks if their prosecution can safely proceed without undue hazard to the criminal law and criminal process.

The strains of maternal imprisonment: Importation and deprivation stressors for women and children

PurposeThis study links General Strain Theory, criminal justice models of inmate adaptation, and life course stress models to examine (1) the influence of importation and deprivation strains on maternal health while imprisoned; and (2) the intergenerational consequences of maternal strains for child outcomes. MethodsQualitative and quantitative data were gathered from an incarcerated sample of mothers in a Federal prison (n=120). Qualitative data were used to identify strains in mothers' lives. Multivariate quantitative analyses were also conducted to test the associations of maternal importation and deprivation strains with maternal health problems and child subjective weathering, or a sense of growing up faster than one's peers. ResultsThe deprivation strain of a lack of contact with the mother's minor child is positively associated with her mental and physical health problems and children's subjective weathering. Maternal importation strains in the form of childhood traumas also increase mental health problems and subjective weathering. ConclusionsThis study finds that maternal deprivation and importation strains are associated with mother and child adjustment. Reducing strains mothers face while imprisoned may benefit both inmates and families. Furthermore, deprivation strains are influential net of pre-imprisonment stressors.