Punitive Regime Research Articles

Refugee recognition: reconsidering Honneth in light of Benjamin and Klein

AbstractUsing data collected from participant observation through creative workshops in two regions of the UK in 2019 and 2020 with participants going through the asylum system, this paper seeks to redress the under-theorisation of Axel Honneth’s use of critical and psychoanalytic theory including the work of Donald Winnicott within Honneth’s book The Struggle for Recognition. Crucially, this approach sees Honneth’s primary intersubjective process of recognition, love, as ambivalent, as opposed to monolithically conceived, a common criticism of Honneth’s early work, and applies this conception to empirical data. Following the work of philosopher Amy Allen, this paper also resolves to apply Jessica Benjamin’s use of the Third to a number of empirical case studies relating to creative workshops conducted with participants going through the asylum system. By taking this ambivalent approach, this paper shows how meaningful recognition might more successfully be achieved beyond the limits of such the punitive regimes of asylum.

Disability, employment and welfare reform: A comparative analysis of Australia and Denmark

AbstractFrom the poor‐relief tradition to the social citizenship‐based development of the welfare state, the question of available social supports for people with disability has been one of the central issues of welfare reform agendas. Under the increasing influence of neoliberal rationalities, many welfare states have engaged in the redefinition of capacity and incapacity to work in an attempt to manage the fiscal cost of a growing number of people on disability pension and work incapacity benefits. These reconfigurations of income transfers have significant implications for the social and economic participation of people with disability. This article seeks to build knowledge about the policy implications of these changes by comparing recent disability policies in two very different welfare states—Australia and Denmark—who have contrasting approaches to activation measures concerning people with disability. This article examines how these welfare states have reconfigured the meaning of disability, thereby either restricting further or relaxing the conditions of labour market activation. Through these two cases, we argue that there is a case for labour market participation insofar as rights to work through improved employment opportunities take precedence over punitive regimes that reduce access to income support.

Expectations and Management of Technology-Assisted Supplemental Work: A Managerial Perspective

Limitless connectivity enabled by Information Communication Technologies (ICTs) has aided organisations to keep their employees linked to work even after hours. Drawing from work boundary theory and sociomaterial theory, this study explores what leads to technology-assisted supplemental work (TASW) expectations and how these expectations are managed in organisations. In the analysis of qualitative data collected from 20 senior-level managers from two organisations in Sri Lanka, we found that organisational norms developed through top management influence led to TASW expectations among lower-level managers. These expectations are then imposed by managers, and nonresponses are controlled by means of confrontations and punishments. These punitive regimes could especially create discriminative effects on married female employees if they cannot meet the after-hour expectations due to gender roles associated with the home domain. However, having formal policy guidelines on TASW could reduce the negative consequences on employees. This study contributes to the literature by including the managerial perspective on TASW expectations.

Introduction: Punitive Perspectives on Labour Management

AbstractWhat is the historical role of punishment in the management of labour? This is the central question of this Special Issue of the International Review of Social History (IRSH), “Punishing Workers, Managing Labour”. Through a close reading of the diverse range of articles included in this Special Issue and by addressing the relatively extensive but highly fragmented scholarship on the subject, this introduction argues that the key to labour management lay in the interplay of differentiated forms of punishment with distinct labour relations, rather than in the imposition of one punitive regime onto an undifferentiated workforce. In other words, the effective management of labour required the systematic differentiation of the workforce; to that end, the imposition of diversified forms of punishment did not merely reflect existing labour distinctions, but also contributed to creating them. This point leads us to address broader methodological and theoretical issues about how we can analyse such complex interactions: how we can compare the role of punishment in the management of labour across space and time, and how our findings can be used to explain short- and long-term historical changes.

"Adapt or Perish": The uncertain fate of childhood contributory negligence in Scotland

The field of Delict (Tort) is a noteworthy exception to widespread, evolving child rights-based norms across Scottish Law, for there has been little change in the treatment of children in Delict in Scotland in over a century. This article argues that childhood contributory negligence, in its current form, cannot survive imminent, and full, statutory incorporation of the CRC in Scotland. The framework and operation of the law governing childhood contributory negligence is critically reviewed, drawing on Scottish, and relevant UK-wide, case law. Widespread inconsistencies in judicial reasoning about children in contributory negligence determinations are highlighted. Thereafter, consideration is given to what CRC compliance might involve in the field of Delict. Two core rights, article 3 (best interests) and article 6 (child's right to life, survival and development), are then discussed with reference to new Scottish Criminal Sentencing guideline requiring courts to consider the evolving capacity of young people up until the age of 25 years. The article concludes with a call for conceptual and practical reform so that the largely punitive regime of childhood contributory negligence in Scotland must now - in the words of H.G. Wells - either "adapt or perish".

Privatisation and accountability in Australian immigration detention: A case of state-corporate symbiosis

Across the global north, immigration detention has become an increasingly common punishment for ‘illegal’ movement between borders. The punitive nature of Australia's border protection laws is enhanced by a privatised and offshored model of operation, drawing in corporations and neighbouring territories to sustain a policy of indefinite, offshore detention. Reading these arrangements as resulting in actions that might be described as state-corporate crime, this article considers how such punitive regimes are sustained by the institutional actors who operationalise them. It analyses documents tabled before the Australian Senate in 2019 which detail the contractual relationship between the Department of Home Affairs and private security provider Paladin. Communications materials in particular, including emails and meeting minutes, reveal a compromised framework of accountability that failed to apprehend underlying forms of harm in offshore detention, therefore sustaining its capacity to punish. The results also suggest a shared interest between government and Paladin in maintaining this compromised framework, and an absence of voices which might challenge it. Noting that public-private contracts are commonplace in contemporary punitive regimes, the article concludes by interrogating the place for human rights compliance within these regimes.

Injuring Family Relations through Gross Violations of International Human Rights and Humanitarian Law

Drawing a line between victims and non-victims in the context of gross violations of international humanitarian and international human rights law is not an easy task. On the one hand, mass atrocities lead to widespread victimisation of individuals, groups and communities who suffer from various types of harm and damage incurred in the process of their commission. On the other hand, clearly not every person affected by an ongoing conflict and mass criminality should be considered an injured party. This article addresses such conceptual dilemmas by casting light on the function of family relations as grounds of indirect victimhood. To this end, it identifies two theoretical models of victimhood and showcases how they have been put into practice by international and hybrid courts and tribunals in their respective reparative and punitive regimes.

Hope in a time of world‐shattering events and unbearable situations: Policing and an emergent ‘ethics of dwelling’ in Lander Warlpiri country

AbstractIn November 2019, members of Willowra community marched on the local police station in protest against the police shooting of Kumunjayi Walker at Yuendumu. Expressing solidarity with family at Yuendumu, individuals breached the barbwire fence of the vacant police compound. Unlike settlements such as Yuendumu, which have had resident police for decades, Willowra police station is 1 of 18 Northern Territory ‘Taskforce Themis’ stations set up as a temporary measure during the 2007 Intervention. Although the police presence is recent and inconstant, Lander Warlpiri Anmatyerr people have long experienced the agonistic effects of police authority in their region—beginning in 1928 with the gunning down of their relatives by Constable Murray and his accomplices during the Coniston Massacre. No charges were laid against these murderers, a reflection of the moral economy and ‘politics of life’ of settler society at the time. Although policies have changed, the past reverberates in the present, as people find creative ways to survive the effects of totalising state institutions and punitive regimes. Furthermore, while locals might back a police presence at Willowra, they continue to assert the importance of Warlpiri Law. This paper reflects upon narratives and events that illuminate local perceptions of police and their role in the community over time. In the course of this account, the focus shifts from policing to people's hopes that unbearable situations might improve, as they use shields both as object and metaphor to deflect the weapons of the state and maintain the Warlpiri socio‐moral order.

Punitive damages for intellectual property infringements in China – A cross-jurisdictional analysis

China’s Civil Code provides for a system of punitive damages. In particular, it affirms the content of punitive damages for intellectual property rights. An analysis of the punitive damages regime for intellectual property rights in China aims to introduce to the reader legal elements for the entitlement of punitive damages, methods of quantification as well as existing problems found in the implementation of relevant provisions in China. A comparison is made between the concept of punitive damages under both common law and civil law jurisdictions with the example of the U.S. and Germany, and some recommendations are provided for foreign rights holders and the Chinese legislators regarding the implementation of punitive damages.

Placement agencies for care-domestic labour: Everyday mediation, regimes of punishment, civilizing missions, and training in globalized India

AbstractSurvey data on Indian labour points to a rapid expansion of the care-domestic economy, currently the main employment avenue for urban women. Hitherto, studies on domestic service portray the unequal class structures of master–servant relationships and the escalating phenomenon of live-out and part-time hired help. This article shifts the focus to under-researched, yet increasingly visible, placement agencies, which regulate care-domestic markets and provide diverse services, from specialized ‘patient care’ to the training of subaltern communities. The article discusses how these service providers denote prominent shifts in skill sets, intra-household care arrangements, forms of medical assistance, and new (and old) mechanisms of authority. The ethnography expands our knowledge of everyday mediations around hiring and training between agencies, employers, and care-domestic workers in New Delhi. The article puts forward innovative conceptualizations of service provider approaches through juxtaposing the informal practices of local (or Indian) agencies with formalized and ‘civilizing’ agendas developed by Euro-American intermediaries. The formal–informal dichotomized framework of service provider relationships adds to critical scholarship that contrived dualisms which need historical scaffolding and nuanced engagement. I argue that, while informal and formal approaches appear markedly different for the care-domestic economy, they also overlap. Significantly, both approaches are unjustly weighted against the workers who lack the potential to democratize labour relations. Local agencies reinforce exploitative care-domestic relationships, while Euro-American intermediaries, who espouse modern values, formalization, and civilizing experiments, promulgate punitive regimes and stigmatized futures for their Indian subjects.

Medical Coercive Measures Under the Albanian Legislation and their Application to Criminally Irresponsible Individuals

Individuals, who are characterized by mental disorders and manifest them in a criminal behavior, cannot besubjects to the same punitive regime provided for other subjects of criminal offenses. Neither penitentiaryinstitutions nor civilian psychiatric hospitals are suitable for these individuals; the former, because theyare conceived only for that category of subjects who culpably violate criminal norms; second, because,since psychiatric hospitals have therapeutic purposes, they are not suitable for controlling the social risk ofirresponsible subjects.Any decision of irresponsibility due to mental state brings a certain consequence, namely the dismissalof the case and the imposition of coercive measure. The defendant, due to his social danger, may undergooutpatient treatment or compulsory treatment in a medical institution.The following manuscript analyzes the importance of medical coercive measures provided by the criminallegislation and at the same time, their importance in the treatment of irresponsible persons, perpetratorsof criminal offenses. It tries to give an overview of the different orientations that characterize the issue inquestion, to underline the conclusions reached by jurisprudence and at the same time to reason not only onthe basis of applicable norms, but also on the basis of perspective and opportunity for reform, seeking todevelop points of reflection and avoid unreasonable discussions.

Manifesting desire and anarchy as method: The problem of Inside Pussy Riot

My aim is to consider how anarchy reads and resists punitive regimes in performance, particularly in ‘immersive performance’. Punk troupe Pussy Riot forms a starting point, via Riot Days in 2017–18, with a sustained consideration on Inside Pussy Riot at the Saatchi Gallery in 2017, produced by Les Enfants Terrible. I concentrate on claims for authenticity that seem to lend theatre and performance legitimacy in relation to social change, to critique theatrical work with claims to producing agency, legitimizing hope for social transformation that is predicated on an ‘empowered’ spectator-participant. In the wake of these concerns, questions that bleed through this material relate to the limits of participation in performance and how and whether representations serve to dismantle state institutions. I consider whether the force of replications of cells, yards or gulags enables or disintegrates any activist, anarchist potential in performance. I take a wide-ranging view of anarchism beyond political theory to consider anarchism modelled in performance terms. Building from the example of Pussy Riot, the article defines performance critique through desire and anarchism, ‘manifesting desire’ or ‘anarchy as method’.

Improbidade administrativa e crimes de responsabilidade: Pet. 3.240 Agr/DF


 Trata-se o presente trabalho de análise, composta de exposição, apresentação dos argumentos e posições dos Ministros da Suprema Corte e leitura crítica, a respeito da decisão colegiada em razão do agravo regimental na Petição 3.240/DF, que discutiu a submissão de agentes políticos ao regime punitivo de improbidade administrativa e a extensão do foro privilegiado em caso de resposta afirmativa.

Capital and Convict: Race, Region, and Punishment in Post–Civil War America by Henry Kamerling

Reviewed by: Capital and Convict: Race, Region, and Punishment in Post–Civil War America by Henry Kamerling Robert Colby Capital and Convict: Race, Region, and Punishment in Post–Civil War America. Henry Kamerling. Charlottesville: University of Virginia Press, 2017. ISBN 978-08139-4055-7. 328 pp., cloth, $45.00. In 1866, South Carolina governor James Orr argued for overhauling the state's penal system. With those held therein "exempt from all labor," he claimed, they remained "vicious, depraved non-producers" (28). While Orr complained specifically about the treatment of freedmen newly under the state's authority, his sentiments encapsulated national theories regarding the intersection of incarceration, work, and character. In Capital and Convict, a comparative study of the penal systems South Carolina and Illinois developed between 1865 and 1886, Henry Kamerling probes the nexus between understandings of convicts' depravity, labor's reformative power, and capitalism's emerging hegemony. Rather than producing fundamentally different punitive regimes (as studies of Gilded Age incarceration often suggest), the North and South saw strikingly similar ones evolve; despite different racial ideologies, capitalism's overarching effects and prisoners' resistance produced penal systems divergent in details but similar in essentials. In the wake of the Civil War, South Carolina and Illinois reckoned with escalating numbers of convicts, which taxed the states' governments and thus their citizenry. Each erected penitentiaries and strove to make the incarcerated offset the expenses they incurred via various forms of contract labor. Beyond seeking to make prisons pay, however, both states responded to a growing impulse to reform inmates. In Illinois, authorities heeded reformers' calls to see their charges as individuals who had deviated from society's norms but were capable of repenting and rejoining that [End Page 197] same society. To speed this process, they advocated religious instruction, education, and a vigorous regimen of refining labor (and if the state profited, all the better). With Radical Reconstruction empowering South Carolina's politically engaged black majority, for a decade that state pursued a similar course and rejected irreconcilable whites' attempts to install a racialized justice system. While the state experimented with convict labor, it rebuffed the practice of leasing convicts to private employers, which all other Southern states deployed. Conceiving of convicts as exiled members of society to be redeemed and reintegrated, South Carolina's and Illinois's prisons largely converged in the decade following the Civil War. When Reconstruction's end evicted black South Carolinians from power, the state immediately aligned punitively with the rest of the South; indeed, one of Governor Wade Hampton's first actions was to legalize convict leasing. From then on, the state increasingly criminalized its black population, rejecting the premise that it could be integrated into civic and political life. South Carolina collectively and publicly punished African Americans, driving them beyond the civic and political pale white Carolinians constructed. While this racialized penal system differed from that in Illinois (which continued pursuing rehabilitative measures), Kamerling suggests that the similarities remained yet more salient thanks to Gilded Age capitalism's demands. Illinois's system sought to bend prisoners to the structures of industrial life—to remove recalcitrance, install bourgeois morality, and develop the labor discipline necessary for life as wage-workers. South Carolina's efforts similarly conformed convicts to the state's particular expression of capitalism, which prized cheap, submissive black labor above all else. South Carolina's and Illinois's penal systems converged yet further through their failures. Those incarcerated in each state vigorously resisted being molded to fit capitalism's requirements. They saw themselves not as deviants but as victims of systemic injustices. Secure in their innocence, they fought against having their minds, souls, and bodies bent to the nascent economic order. In the face of continuous, stubborn resistance, guards and wardens disregarded high-minded reforms for force. Brutality and repression instigated cycles of resistance and violence. Contestation, then, made the lived realities of both penal systems fundamentally similar; incarceration could well be worse in an Illinois penitentiary than in a South Carolina convict camp, with differences stemming less from region than the whims of penal authorities. Kamerling deftly deploys the relatively limited available sources to indicate similarities in carceral life across the late-nineteenth-century...

The General Data Protection Regulation: an overview of the penalties’ provisions from a Portuguese standpoint

The aim of this paper is to analyse the punitive regime foreseen in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR). The administrative fines’ regime found in Article 83 of the GDPR and some of the questions it arises will be explored. We conclude that the Member States should adopt a critical stance when adapting their national legislation to the norms of the GDPR. The fundamental principles enshrined in national constitutions and supranational legal texts must be closely analysed and observed since the GDPR introduces a mandatory sanctions framework.

China’s New Long March to Control Illicit Substance Use: From a Punitive Regime towards Harm Reduction

Abstract Illicit substance misuse has become a serious problem in contemporary China. The number of officially registered illicit substance misusers totals close to 3 million, having increased every year since the government’s first annual report on drug control in 1998. In recent years, synthetic drugs such as methamphetamine and ketamine, have become more popular than heroin which was previously dominant. However, illicit substance use continues to receive little sympathy from the public, despite government’s efforts to move towards treatment and rehabilitation. For many years, compulsory detoxification centers and “education-through-labor” camps were the only treatment options. More humane approaches are emerging, including methadone maintenance, therapeutic communities, and faith-based halfway houses. Government response to drug trafficking remains draconian. Drug distribution and trafficking are among the dwindling number of criminal offenses that qualify for the death penalty. For future drug control policy, China appears willing to accelerate its experiment with decriminalizing substance abuse and applying a public health approach to the treatment of substance misusers. Evidence-based treatment programs through scientific research and rigorous evaluation should be the norm, and harm reduction needs to be seriously explored as an alternative to the harsh criminal justice regime. More importantly, reliable and multi-faceted forecast systems need to be established to monitor and estimate the size of substance misuser population and trends in illicit drug consumption. Finally, China should continue to expand its international collaboration and insulate its counter-narcotic programs from global politics.

Can Corporations Be Held to the Public Interest, or Even to the Law?

This article addresses our failing ability to hold business corporations to the public interest, or even to bare legality. It defends, in brief compass, the reasonableness of the expectation that corporations provide public benefits as consideration for their public privileges. But as succeeding sections recount, the traditional instrument for holding corporations to the public interest has gradually been undermined; and our standard, punitive tools for holding them even to bare legality, suffer from inherent limitations and fail adequately to deter corporate misconduct. A more adequate approach would be to supplement the current punitive regime with reform of corporate governance in directions that would decrease the temptation of managers to engage in misconduct in the first place. Several possibilities are considered, with the most promise found in allowing corporations to be owned by Danish-style “industrial foundations.” Among its advantages, the reform is realizable and would reduce incentives to corporate misconduct without compromising on performance. Industrial foundations also customarily direct a portion of corporate profits to charity, in effect reinstating the norm that for-profit corporations provide public benefits.

Can Corporations Be Held to the Public Interest, or Even to the Law?

The present article addresses our failing ability to hold business corporations to the public interest, or even to bare legality. From the first application of the corporate form to business enterprise, and for centuries thereafter, the reigning norm (if not in all instances the reality) was that business associates received the privilege of incorporation only on condition that their enterprise would generate public benefits. The essay’s first section defends, in brief compass, the reasonableness of this expectation—that corporations provide public benefits as consideration for their public privileges. But this reasonableness confronts a stark reality. As succeeding sections recount, the traditional instrument for holding corporations to the public interest has gradually been undermined. What is more, as John Coffee Jr. ably argued a generation ago, corporations are so structured that our standard tools for holding them even to bare legality—for example, punishing the legal entity, or punishing the culpable individuals—suffer from inherent limitations and fail adequately to deter corporate misconduct. Nor, I argue, would deterrence be increased were we to follow the recent proposal of Christian List and Philip Pettit and punish the corporate group as a whole whenever it acts as a single “group agent.” From these considerations the essay draws the lesson that punishment, while necessary, will always be insufficient to hold corporations to the law, let alone to the public interest. A more adequate approach would be to supplement the current punitive regime with reform of corporate governance in directions that would decrease the temptation of managers to engage in misconduct in the first place. Among the many possibilities, three are singled out for consideration, each of which targets simultaneously the problem of corporate short-termism and the problem of corporate misconduct. One reform would be to change the way in which corporate executives are compensated, curbing pay in the form of stock and stock options so as to eliminate its perverse incentives. A second would be to institute some form of German-style “co-determination.” A third would be to allow ownership of corporations by Danish-style “industrial foundations.” The essay concludes that the last reform holds the most promise as the most realizable supplement for decreasing corporate misconduct. The reform adds two additional benefits. Foundation ownership is one of the few effective devices for institutionalizing progressive corporate governance over the long term; and industrial foundations customarily direct a portion of corporate dividends to charity, in effect reinstating the norm that for-profit corporations provide public benefits.

Saving Children, Controlling Families

This study shows that state efforts at child protection are structured by the policy regimes in which they are enmeshed. Using administrative data on child protection, criminal justice, and social welfare interventions, I show that children are separated from their families and placed into foster care far more frequently in states with extensive and punitive criminal justice systems than in states with broad and generous welfare programs. However, large welfare bureaucracies interact with welfare program enrollment to create opportunities for the surveillance of families, suggesting that extensive and administratively complex welfare states engage in “soft” social control through the surveillance and regulation of family behavior. The article further shows that institutionalization, a particularly restrictive form of foster care placement, is least common in states with broad and generous welfare regimes and generally more common under punitive regimes. Taken together, these findings show that policy regimes influence the interaction between families and the state through their proximate effects on family structure and well-being and through institutional effects that delimit the routines and scripts through which policymakers and street-level bureaucrats intervene to protect children.

Deportation Discretion: A Measure of Immigrantss Context of Reception

As deportations from the United States rise to unprecedented levels, a nationwide immigration enforcement program (Secure Communities) identified noncitizens under arrest in county jails. The implementation of Secure Communities did not take place on neutral ground. I extend minority threat research by examining how some county and federal officials oversaw exceptionally punitive regimes while others exercised the authority to deport sparingly. I test three minority threat hypotheses and find law enforcement officials deployed Secure Communities punitively in places where Hispanic immigrants communities stand out, especially in select counties near the US-Mexico border and in new destination states. Conversely, noncitizens arrested in counties with a formidable minority presence seem to have benefited from above-average minority concentrations and high levels of segregation. I conclude deportation decisions made in the context of bureaucracies coincided with local demographic forces but not in the same ways as they foretell restrictive immigration actions in state assemblies or public sentiments in opinion surveys.