Modern Criminal Justice Research Articles

Penal Policy Transfer: A Case Study from Ukraine

The paper attempts to reflect critically on the author’s work in eastern Europe and considers ‘transfer’ of policy and practice. There is a great deal of activity of this type as transitional democracies, typically relatively new members of the Council of Europe and often aspiring to membership of the EU, try to establish modern criminal justice practices by drawing on the experiences of northern and western Europe. How are such undertakings to be understood and theorised? There is a dearth of theoretical writing in this area and this paper raises fundamental questions.

Policing Before and After the Police

The extent and import of changes in contemporary crime control are hotly contested. By setting these changes in historical perspective, this article challenges claims that we are entering a new era in policing. Examining the eighteenth-century antecedents of present developments reveals the explanatory value of historical perspective and the relevance of Enlightenment political theory for the present governance of policing. Teasing out enduring motifs in crime control suggests that the symbolic monopoly on policing asserted by the modern criminal justice state may just be a historical blip in a longer-term pattern of multiple policing providers and markets in security. Loss of this monopoly only intensifies state responsibility to uphold policing as a public good.

The incorporation of the European Convention on Human Rights: Maintaining the integrity of a modern criminal justice system within the context of improperly obtained evidence

The European Convention on Human Rights 1950 represented a radical endeavour to create a set of pan-European civil liberties and, moreover, to set in place a machinery for the recognition and enforcement of human rights. However, the Convention was not, legally, part of UK domestic law. Instead, appeals had to negotiate the lengthy and expensive route to the Court sitting in Strasbourg. This was to change when the Labour Party returned to office resulting in the 1998 Human Rights Act under which the Convention became a part of UK law. In the area of criminal law it was regarded as an imperative that the integrity of the criminal justice system be protected and enhanced, through a recognition and consolidation of the rights to a fair trial. This article focuses on the prosecution's use of improperly obtained evidence, as one aspect of the right to a fair trial, and illustrates its problematic enforcement. It also raises questions as to the ultimate success of the 1998 Act given the common law reliance on judicial discretion and the lack of judicial creativity in applying Convention rights.

Entrepreneurs of punishment

Privatization of corrections is problematic in large part because advocates claim that private contractors can provide the same or better services at less cost than public agencies. This article argues that there is another, even more important issue: privatization is fostered by entrepreneurs who do much more than provide alternative sources of services; they create demand for and then supply new forms of social control. Indeed, the history of modern criminal justice is to some extent the history of the success of entrepreneurs in generating new or significantly expanded forms of social control. The article examines the history of entrepreneurs in establishing transportation in the 18th century and the modern prison in the 19th, and then draws parallels to contemporary efforts to provide private prisons, ‘community-based’ juvenile facilities, and electronic monitoring programs.

The culture of control: crime and social order in contemporary society

1. A History of the Present 2. Modern Criminal Justice and the Penal-Welfare State 3. The Crisis of Penal Modernism 4. Social Change and Social Order in Late Modernity 5. Policy Predicament: Adaptation, Denial and Acting Out 6. Crime Complex: The Culture of High Crime Societies 7. The New Culture of Crime Control 8. Crime Control and Social Order Bibliography Index

Fear of Forgiving: Rule and Discretion in the Practice of Pardoning

This paper, by the former Justice Department Pardon Attorney, discusses the role that executive clemency plays in the modern criminal justice system. It explores the tension between rule-based justice and discretionary mercy, suggesting ways of accommodating these two great principles of decision in a determinate sentencing system. It traces the evolution of the pardon function in the federal justice system, and explains the atrophy of pardon in recent years. It attributes the break-down of the pardon process at the end of the Clinton Administration as much to its capture by prosecutors and bureaucrats within the Justice Department, as to the lack of discipline and judgment shown by the departing President Clinton. This paper analyzes the other symposium essays in terms of the relative importance they ascribe to regularity and discretion in the theory and practice of pardoning. Finally, it proposes that reliance on a rule-based administrative system maximizes the President's ability to use his constitutional power as the Framers intended. The good news about the final Clinton pardons is that they have drawn attention to problems in the justice system that have been simmering for years. The evident need to rethink how pardons should be used and administered provides an early opportunity to consider these problems. Recognizing the limits of pardons should encourage law reform efforts, and recognizing the limits of the law should identify a place for pardons.

The Shariah Crisis in Nigeria: An Insider View+1

The Sharia imbroglio was precipitated by the official declaration of Zamfara as a Sharia state[1]. This declaration resuscitated the Islamic criminal jurisprudence, which had been compromised by the penal code in the formative years of modern criminal justice system in colonial Nigeria[2]. The crisis epitomizes an ideological clash between the positivist and sociological jurisprudential fixation of law. The command theory of law, and the societal's (wholly or partial) perception of what the law should be were stretched to their limits. The Sharia impasse makes a re-assessment of its utilitarian value within Nigeria's socio-cultural milieu, both urgent and imperative. What degree of popularity and acceptability does a law require to achieve its objectives in the context of Nigeria's heterogeneity? What is the relevance of the source and constituents of a law to its acceptability and conformability? How could the re introduction of the Sharia criminal jurisprudence inflict a wound so deep on the nation's psyche and distort its socio-cultural land scapes with such a seismic and reverberative force? If a law is meant to foster peace and orderliness, how could it be the object of conflicts and dissections – a supreme irony that the Sharia now is? This thesis essays a dispassionate view of the Sharia's nature, history, potentials, resurgence and prospects within Nigeria's body polity and constitutional democracy. IFE PsychologIA Volume 9 no 3, 2001, pp. 44-58

Recht en krom. Corruptie, ongelijkheid en rechtsbescherming in de vroegmoderne Nederlanden

Straight or crooked: Corruption, inequality and civil rights in the early modern NetherlandsWith the help of several case studies from the 16thj 17th and 18th centuries, this paper focuses on two key questions: how did the ordinary citizens of the Dutch Republic protect themselves against corruption and the misuse of power by law enforcement agents, public prosecutors and the courts?; and, whose interests were actually being served by the early modern criminal justice system? Or, put another way: whose order was being maintained, and who was excluded from it? It is argued that the absence of a critical tradition in Dutch historiography concerning these issues fits in with the continental perspective in which the rights of the state are emphasized rather than the rights of the individual, whereas in England the opposite seems to be the case: a critical historiographical tradition juxtaposed to a past in which civil rights were emphasized, together with resistance to the state and other bastions of power, rather than on state privileges.

THE DETERRENT EFFECT OF TERRORIST INCIDENTS ON THE RATES OF LUGGAGE THEFT IN RAILWAY AND UNDERGROUND STATIONS

The study reported here considers the deterrent effect of terrorist incidents on the rates of luggage theft in railway and underground stations. We selected for our task a well-publicized major terrorist incident that took place on 18 February 1991. The analysis of the data shows that in the periods immediately following the terrorist incident there was a sharp but short-lasting decline in the number of cases of luggage theft. This indicates that either increased police vigilance, or the fear of potential thieves that items of luggage might contain explosives, produces a definite if short dived deterrent effect. One of the most debated and controversial issues in modern criminal justice policy is that of general deterrence, i.e. the inhibiting effects of sanctions on the illegal activity of potential criminals. (Zimring and Hawkins 1973; Beyleveld 1979, 1980; Tittle 1980; Walker 1991). The underlying assumption of general deterrence theory and associated policy is that individuals calculate the risk involved in criminal activity and refrain from it, because of their fear of punishment. Used in this sense, deterrence assumes a rational calculation of benefits and risks, including the probability of detection as well as the severity and swiftness of punishment by the potential offender. Indeed, utilitarian writers and economic and modern classical theorists argue that the purpose of criminal justice is to create an organized system of official threats sufficient to outweigh the perceived benefits of committing a crime (Bentham 1789; Posner 1985; Walker 1991). Opponents of the validity of the concept of general deterrence, on the other hand, dispute the thesis that potential criminals calculate risks in a rational manner and reject the view that the perception of the danger that they will be apprehended and punished for their misbehaviour has any significant deterrent effect. They argue that people tend to commit offences almost irrespective of the risk involved.1 The identification and measurement of deterrence are notoriously difficult for researchers, because of the methodological and ethical problems involved. As Ash worth points out, satisfactory empirical evidence is difficult to obtain since 'the condi tions must be such that non-offending can safely be ascribed to the deterrent effect of the sanction rather than other factors' (Ashworth 1994).

Dangerousness, Risk and Technologies of Power

This paper provides a critical examination of the prevalence of dangerous offender legislation in modern criminal justice systems. The debate about this has been dominated by issues of ethics and effectiveness. Here, though, I want to examine the significance of this legislation and some of the theoretical issues that this raises. This involves discussion of the way in which ‘dangerousness’ as a social construct has changed historically and similarly the mode of its calibration. Ultimately, the dangerousness legislation today involves the use of a largely unnoticed strategy of control — actuarialism; and seems more likely to have an effect on the behaviour of potential victims of crime rather than dangerous offenders themselves.

Race and the Australian conscience: Investigating Aboriginal deaths in custody

Abstract Aboriginal Australians, dispossessed and marginalised in colonial times, dispersed and demoralised by paternalistic and assimilationist policies, experience institutionalised disadvantage under the modern criminal justice system. Criminologists have demonstrated gross over‐representation of Aboriginals as defendants and prisoners. Aboriginal offenders typically commit minor offences. Many are in custody for fine default or for street offences associated with drunkenness. A series of widely publicised deaths in custody in 1986–87 led to inquiries in Queensland and Western Australia and the establishment of a Commonwealth and State/Territory Royal Commission late in 1987. Originally confined to an examination of the immediate circumstances of the custodial deaths, the Royal Commission has extended its investigation into background social issues. Preliminary reports have confirmed the findings and analysis of previous researchers. The key problem is increasingly seen not to be a disproportionate num...

Survey of the Modern Criminal Justice in England

Survey of the Modern Criminal Justice in England