Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court's conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.
Essay| April 01 2021 The Kiwi Way: New Zealand’s Approach to the Exclusion in Criminal Trials of Evidence Improperly Obtained by the Police Scott Optican Scott Optican Associate Professor, The University of Auckland Faculty of Law, New Zealand. Search for other works by this author on: This Site PubMed Google Scholar New Criminal Law Review (2021) 24 (2): 254–270. https://doi.org/10.1525/nclr.2021.24.2.254 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Share Icon Share Facebook Twitter LinkedIn Email Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Scott Optican; The Kiwi Way: New Zealand’s Approach to the Exclusion in Criminal Trials of Evidence Improperly Obtained by the Police. New Criminal Law Review 1 April 2021; 24 (2): 254–270. doi: https://doi.org/10.1525/nclr.2021.24.2.254 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search nav search search input Search input auto suggest search filter All ContentNew Criminal Law Review Search Keywords: criminal evidence, criminal trials, exclusion of evidence, New Zealand, Bill of Rights, comparative law This content is only available via PDF. © 2021 by The Regents of the University of California2021 Article PDF first page preview Close Modal You do not currently have access to this content.
Although an offender's conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.
This study looks at the principles that shape the structure of the whole of Thai criminal procedure law. It examines how the search for truth is attempted to be reconciled with the idea of a fair trial or procedural fairness. The conflict between the search for truth on the one hand and guaranteeing procedural rights of the accused on the other is particularly problematic in the Thai context. Thai law affirms that some evidence cannot be admissible if it is obtained by a violation of certain procedural norms. At the same time, the law allows judges to admit some unlawfully obtained evidence in the interest of justice. The conflict between various legal norms cannot be solved without permitting judges to exercise broad discretion in striking the right balance between discovering the true facts and protecting the rights of the accused. Thai legal education and practice does not allow a broad judicial discretion in accepting or rejecting evidence on the grounds that it was obtained unlawfully. As a result, there is an attempt to build a sophisticated system of rules to accommodate the interests of justice and fairness in different situations. This system, however, lacks clarity and consistency.
“Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.
Although an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.
In June 2018, a new Reform came into effect in the Judea and Samaria Area (the West Bank; hereinafter “the Area”). For the first time, victims of terror activity that was adjudicated in military courts in the Area, acting under international law, were given statutory rights. These victims were awarded new procedural rights, including the right to receive information regarding the proceedings against the defendant, updates regarding plea bargains, release from prison, and pardon. The rights that crime victims are now entitled to, following the Reform, will allow them to state their opinion on and take part in the proceeding, though not entirely so. The article describes the new Reform regarding victims of terrorism in the Area. It explains the legal, international, and social factors that were at the basis of the Reform. It portrays how these changes are compliant with principles of international law and of foreign legal systems relating to enhancing the protection of crime victims. The article then explores the normative changes expected as a result of the Reform and performs a preliminary evaluation of future developments resulting from its application, de facto. Simultaneously, the article poses criticism to certain aspects of the Reform, such as regarding the enforcement of compensation awarded to victims of terrorism in the Area, and offers suggestions for improvement.
The tailwinds might be behind criminal justice reform, but American mercy power remains locked in a sputtering clemency model. Centralized leadership should be braver or the centralized institutions should be streamlined, the arguments go—but what if the more basic mercy problem is centralization itself? In this essay, I explore that question. In so doing, I defend the normative premise that post-conviction mercy is justified, and I address the questions of institutional design and political economy that follow. I ultimately encourage jurisdictions to layer decentralized mercy powers on top of their clemency mechanisms, and for the newer authority to be vested in local prosecutors. I present less a single proposal than a collection of principles for mercy decentralization. Governors and presidents simply cannot deliver the punishment remissions appropriate for an American prison population bloated by a half-century love affair with over-criminalization, mandatory minimums, and recidivism enhancements.
What is the rate of wrongful conviction? This question may be implicit in Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.” Scholarship designed to provide an empirical answer, however, emerged only with the rise of the “innocence movement” in the United States. This article does not provide another study estimating the rate of wrongful felony conviction either for a specified sample, such as death sentences within a specified time period, or for an entire jurisdiction. Instead, we evaluate the rate question itself and assess its importance to innocence scholarship and action. We first trace the question’s intellectual lineage, and its historical and ideological roots among innocence believers and innocence skeptics. We then describe and evaluate all or most of the published studies attempting to estimate the wrongful conviction rate. Next, we discuss a reoccurring limitation of this published work, namely, its failure to account for or its unsubstantiated assumptions about guilty pleas and misdemeanor convictions among innocent defendants. Finally, we question the continued importance of the rate question in light of the modern innocence movement and its growing accomplishments.
What is the rate of wrongful conviction? This question may be implicit in Blackstone's ratio: "It is better that ten guilty persons escape than that one innocent suffer." Scholarship designed to provide an empirical answer, however, emerged only with the rise of the "innocence movement" in the United States. This article does not provide another study estimating the rate of wrongful felony conviction either for a specified sample, such as death sentences within a specified time period, or for an entire jurisdiction. Instead, we evaluate the rate question itself and assess its importance to innocence scholarship and action. We first trace the question's intellectual lineage, and its historical and ideological roots among innocence believers and innocence skeptics. We then describe and evaluate all or most of the published studies attempting to estimate the wrongful conviction rate. Next, we discuss a reoccurring limitation of this published work, namely, its failure to account for or its unsubstantiated assumptions about guilty pleas and misdemeanor convictions among innocent defendants. Finally, we question the continued importance of the rate question in light of the modern innocence movement and its growing accomplishments.
In 2018, the Supreme Court issued a little noticed decision, Currier v. Virginia, that signaled a potential revolution in the Double Jeopardy Clause doctrine. This essay uses that decision to reconsider the Clause's disparate protections, seeking coherence in this long-confused area of law. In doing so, it finds that the central protections of the Clause are best understood through a single, novel framework: the jury-preservation theory of double jeopardy. This essay explicates the theory, explaining its roots in the Revolutionary Era jury, its applications to modern double jeopardy law, and its implications for Currier and future double jeopardy cases.
In June 2018, a new Reform came into effect in the Judea and Samaria Area (the West Bank; hereinafter "the Area"). For the first time, victims of terror activity that was adjudicated in military courts in the Area, acting under international law, were given statutory rights. These victims were awarded new procedural rights, including the right to receive information regarding the proceedings against the defendant, updates regarding plea bargains, release from prison, and pardon. The rights that crime victims are now entitled to, following the Reform, will allow them to state their opinion on and take part in the proceeding, though not entirely so. The article describes the new Reform regarding victims of terrorism in the Area. It explains the legal, international, and social factors that were at the basis of the Reform. It portrays how these changes are compliant with principles of international law and of foreign legal systems relating to enhancing the protection of crime victims. The article then explores the normative changes expected as a result of the Reform and performs a preliminary evaluation of future developments resulting from its application, de facto. Simultaneously, the article poses criticism to certain aspects of the Reform, such as regarding the enforcement of compensation awarded to victims of terrorism in the Area, and offers suggestions for improvement.
The U.S. Supreme Court’s decision in Arizona v. Gant fundamentally altered the law governing police searches of vehicles incident to the arrest of a vehicle occupant. To date, there has been no empirical examination of Gant’s impact on line officers. The present study does so using data from a survey of police officers that assessed their ability to apply Gant. Although 93 percent of the officers had been taught Gant and 77 percent had received training within the twelve months prior to completing the survey, 67 percent incorrectly applied Belton, rather than Gant. Moreover, nearly half of the sample were missing constitutionally permissible opportunities to search the vehicle under either of Gant’s two prongs. Concerningly, officers who had received recent training on vehicle searches were significantly less likely to identify correct search protocols under Gant’s evidence prong. The implications of these findings are discussed.
A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy “dual sovereignty” that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.
The prevalent criminal justice practices in the U.S. have produced levels and patterns of incarceration that fewer and fewer politicians, scholars, and citizens care to support. There seems to be widespread consensus that the system is indicted as unjust by its outcomes no matter how these outcomes came about. But if that is so, how can it be turned back? Who should be eligible for release, and on what grounds? This article addresses the position of black prisoners serving very long sentences. Many of these prisoners are at risk of missing out under current legislative and administrative proposals designed to reduce overall levels of imprisonment. Partly this is due to the fact that the wrong of mass incarceration is often understood as a wrong suffered at the collective level by what has come to be referred to as "overpunished communities." It is unclear how the existence of that collective wrong affects the permissibility of continued punishment at the individual level. This article develops an argument that, at the individual level, being a black prisoner serving a very long sentence gives rise to a moral entitlement for a review of the need and justification for continued incarceration. The article outlines the basic shape of a clemency scheme devised especially for these prisoners as a moral imperative for a reform process intended to remedy penal injustice.
This article, prepared for the special issue on investigations, presents an original empirical analysis of the role of the motor vehicle in shaping how officers describe experiencing violence and perceiving danger during vehicle stops. Tens of millions of traffic stops occur every year, making vehicle stops the most common interaction that civilians have with law enforcement. Although traffic stops are commonly described as dangerous settings for police officers, little is known about how the motor vehicle itself shapes officer descriptions, perceptions, and experiences of danger and harm during these stops. The presented findings make at least four key contributions to scholarship and policing law and policy. First, the findings inform unfolding criminal law reforms surrounding the policing and criminalization of traffic offenses, which are major sources of racial disparity in, and net-widening of, the criminal justice system today. Second, the findings prompt questions about whether and when legal actors, and especially actors that regulate the police, should defer to officer danger narratives involving motor vehicles. Third, the findings prompt novel questions about technology and the law, and more specifically, the ability of new motor vehicle technologies to help diffuse officer perceptions of danger that stem from motor vehicles. Fourth and finally, the findings illustrate a need to pay greater attention to the motor vehicle as a source of officer danger and harm in official policing data in order to accurately measure the risks and costs of policing during vehicle stops.
Two questions have dominated the intellectual history of the criminal law: What acts or omissions should the state criminalize? and Why is the state entitled to punish someone—that is, to intentionally harm them—when they commit an offense? However, since the decline of the rehabilitative ideal in the 1970s, and the subsequent rise of a racialized mass incarceration in the United States, a third question has officially joined the corpus: How much (and what sort of) harm should the state inflict on someone when they commit an offense? The reasons that inform our answers to this trinity of questions may overlap to a degree, but it is likely that as we journey from a theory of criminalization to a theory of punishment to a theory of sentencing, we will lose, gain, and refashion principles along the way. For instance, the (crude) beliefs that the criminal law ought to enforce interpersonal morality and that those who offend against interpersonal morality deserve to suffer do not imply very much about what sort of suffering—or, perhaps, mercy— might be in order. This special issue of the New Criminal Law Review seeks to contribute to the still young field of sentencing theory, and to help discover the set of reasons that ought to calibrate and constrain state punishment. Given that the state in its capacity as punisher is at its most burdensome, with the dignity of offenders and their families often in the balance, the stakes are very high. Indeed, we might say that a reasonably liberal and just society depends for its existence—as a liberal society, as a just society, and, possibly, as a society at all—on getting the right answer to the How much? question.
A recent wave of expressive accounts of corporate criminal law operate on the promise that corporate punishment can express a unique form of condemnation not capturable through civil enforcement. Unfortunately, the realities of corporate sentencing have thus far failed to make good on this expressive promise. Viewed in light of existing conventions that imbue meaning into our practices of punishment, corporate sentences rarely impose hard treatment in a manner or degree that these conventions seem to require. Accordingly, standard corporate sanctions turn out to be ill-suited to deliver—and, often, will likely undermine—the stigmatic punch upon which expressive defenses of corporate criminal law depend. A common response to this conventional problem with corporate sentencing has been to propose more, and harsher, corporate punishments. However, this approach overlooks the extent to which corporate punishment derives its stigmatic force from preexisting norms and conventions concerning individual punishment. If trying to improve corporate punishment, then, expressivists might instead seek either to leverage or to dismantle the underlying conventions that give existing sanctions meaning. An example of the former strategy would be to revitalize long-neglected proposals for corporate shaming by adopting a criminal convention currently absent from the corporate space—namely, the pervasive, stigmatic application of epithets like “thief” or “felon.” An example of the latter would be to join criminal justice reformers in targeting conventions that, in recent decades, have enabled increasingly draconian sentencing practices. On this view, dissolving corporate sentencing’s conventional problem may represent a further, incidental benefit of systemic criminal justice reform.
