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Article

John L. Worrall and Zachary A. Powell

Charged with enforcing the law and regulating human behavior, the police have considerable leeway in their ability to control the population. On occasion, situations arise in which police officers misuse their authority, resulting in racially discriminatory practices, illegal searches and seizures, abusive use of force, or other forms of misbehavior. In some cases, unconstitutional practices are isolated incidents that are restricted to the actions of a small group of officers; in other cases, misbehavior may be more emblematic of a systemic problem within a criminal justice agency. To the extent that a pattern or practice of unconstitutional behavior exists, the interest of any government, and the people governed, is in limiting official misconduct. One method of correcting unconstitutional behavior is through a consent decree, a court-ordered agreement following a major U.S. Department of Justice (DOJ) investigation that is designed to correct long-standing unconstitutional practices within police departments. Despite the fact that consent decrees have been available to the DOJ for nearly 25 years, their use is somewhat limited (especially lately, in light of the Trump administration’s resistance to their use). A small body of evidence suggests there is promise for consent decrees as a tool for correcting police misbehavior. Existing studies show consent decrees are correlated with boosted citizen perceptions of treated police departments, lower counts of civil rights litigation, and improved methods for recording and disciplining police misbehavior. The influence of a consent decree may gradually build up over time before lapsing post-treatment. In addition, focus group interviews with law enforcement officers suggest that many express apprehension about the goals of reform and the impact on the day-to-day lives of police officers. A number of questions remain unanswered that require further exploration from the field.

Article

Jerry Cederblom

Numerous philosophical theories purport to justify a system of legal punishment. It is doubtful, however, that any of them successfully answer these three questions: Why punish? Whom to punish? How much to punish? Straightforward retributive theories, which justify punishment by looking back at the wrongful harm done by an offender, don’t adequately answer the question of why the offender should be harmed in return for harm done. More sophisticated retributive theories construe punishment as equalizing an unfair advantage taken by an offender. Such theories have difficulty with the question of how much to punish. Consent theories view offenders as willing punishment onto themselves by their voluntary acts. The various versions of this theory all fail to answer one or more of the three questions: why, whom, and how much. Rights forfeiture theories give a question-begging answer to the “why” question and don’t answer the question of how much. Consequentialist theories, which justify punishment by looking forward to results such as deterrence and incapacitation, have difficulties with whom to punish and how much. Arguably, punishing an innocent person who is believed to be guilty could deter potential offenders, and a serious offense might be deterred by a less severe punishment than a minor offense. Some philosophers see insurmountable problems for strictly backward-looking theories that appeal to guilt of the offender and for strictly forward-looking theories that appeal to future consequences. The solution, then, could be a theory that appeals to future results to provide a reason for punishing, but looks back at harm done by the offender to answer the question of whom to punish and how much. However, without a unifying rationale for taking these different approaches to these particular issues, such a mixed theory would be ad hoc if not incoherent. In recent decades, philosophers have offered several approaches that might avoid the pitfalls described above by providing a unified rationale for punishment that is both backward and forward looking. Self-defense theories hold that it is rational and justifiable for the state to threaten punishment in order to defend citizens against offenses. They then move by various strategies from the justifiability of the threat to the justifiability of punishment. Forced choice theories justify punishment as a way of distributing necessary harm to the guilty rather than the innocent. Censure theories attempt to justify punishment as the state’s means of expressing disapproval of offenses against the law. Each of these theories faces difficulties, but proponents might judge that even though they haven’t yet been able to adequately state the justification of punishment, their theory is on the right track. Others view the difficulties faced by all theories and boldly conclude that punishment is not justifiable. There is little support for rehabilitation as an alternative to punishment. The practices associated with restorative justice, although not directly aimed at punishment, typically involve punishment, so they still require a justification for punishment. Whether a system of restitution could take the place of a system of punishment is problematic. The situation is made even more troublesome by the fact that the theories that have been surveyed aim to justify punishment in a society with a just political structure and laws. Even if such a theory succeeds, it is far from clear that it would justify punishment in a society where many of those who are harmed by punishment have also been victims of injustice.

Article

Asher Flynn and Nicola Henry

Image-based sexual abuse (IBSA) is a form of technology-facilitated sexual violence. The term describes a pattern of behaviors involving the nonconsensual creation, distribution, or threats to distribute, nude or sexual images. Also known as “revenge pornography” or “nonconsensual pornography,” IBSA affects a significant proportion of the population. According to Australian research conducted by Henry, Powell, and Flynn, and the Australian Office of the eSafety Commissioner, one in five Australians between the ages of 16 and 49 have had at least one experience of IBSA, including 1 in 10 who have had a nude or sexual image shared without their consent. In a 2016 US study conducted by Lenhart, Ybarra, and Price-Feeney, 4% of men and 6% of women ages 15 to 29 reported having had a nude or nearly nude image shared without their consent. These figures are likely to be an underestimate of the true prevalence of IBSA because such studies only capture victims who have become aware that images of them have been created or shared without their consent. Perpetrators of IBSA can include intimate partners, family members, friends, acquaintances, and persons unknown to the victim, with diverse motivations, including sexual gratification, retribution, coercive control, social notoriety, monetary gain, and voyeurism. The images themselves may be self-created by the victim as a “selfie” or produced consensually in the context of a relationship. Alternatively, images may be digitally altered, taken surreptitiously in public or private settings, or created coercively, or they may have been taken of a sexual assault or rape. While IBSA is not itself new, technology has created a conducive and large-scale platform for such abuse to occur.