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Article

Alexes Harris and Frank Edwards

Despite the central role that fines and other fiscal penalties play in systems of criminal justice, they have received relatively little scholarly attention. Court systems impose fines and other monetary sanctions in response to minor administrative and traffic offenses as well as for more serious criminal offenses. Monetary sanctions are intended to provide a deterrent punishment to reduce lawbreaking, to provide opportunities for accountability through financial restitution, to restore harm caused to victims of crime, and to fund the operation and administration of courts and criminal justice systems. Fines, fees, and other monetary sanctions are the most common form of punishment imposed by criminal justice systems. Most criminal sentences in the United States include financial penalties, and monetary sanctions are routinely imposed for less serious, and far more common, infractions such as traffic or parking violations. For many, paying a monetary sanction for a low-level violation is an annoyance. However, for the poor and people of color who are disproportionately likely to be subject to criminal justice system involvement, monetary sanctions can become a vehicle for expanded social inequality and increasingly severe criminal justice contact. Failure to pay legal financial obligations often results in court summons or license suspensions that may have attendant additional costs and may trigger incarceration. In the United States, the criminal justice system is heavily and routinely involved in the lives of low-income people of color. These already-existing biases, coupled with the deep poverty that is common in many communities, join to widen the net of criminal justice involvement by escalating low-level infractions to far more serious offenses when people are unable to pay. Despite the routine justification of monetary sanctions as less-severe penalties, if imposed without restriction on the poor, they are likely to magnify the inequality producing effects of criminal justice system involvement.

Article

Much has been written about mass incarceration and how it has fallen especially hard on people of color. Given their representation in the U.S. population, for example, black and Hispanic males are far more likely than their white counterparts to be sent to jail or prison. Such disproportionality may be due to the greater involvement of blacks and Hispanics in serious street crime, especially violent crime, which would result in differential incarceration. It also could be due to discretionary decisions by criminal justice officials during arrest, charging, conviction—and, key to the focus of this article, sentencing—which might produce disparity, to the disadvantage of black and Hispanic men. Various theories seek to explain racial and ethnic sentencing disparity by focusing on characteristics of individuals and criminal cases, features of court organization and decision-making, and social contexts surrounding courts. Literally hundreds of studies in the past 40 years and beyond have focused on sentencing decisions in local courts and unwarranted racial/ethnic punishment disparity, defined as racial/ethnic differences that persist after accounting for legally prescribed and perhaps case-processing influences. Some reviews of this large and mature body of literature have shown that young, black, and (to a lesser extent) Hispanic male defendants tend to receive more severe sentences than other defendants. In addition, reviews have noted how the sentencing role of race/ethnicity is often conditional on gender and other factors, and that racial/ethnic disparity in sentencing varies in connection with characteristics of courts and their surrounding social contexts. Future research on race, ethnicity, and sentencing should address disparity in relation to earlier (e.g., charging and conviction) and later (e.g., parole, probation, or parole revocation) stages of criminal justice decisions, as well as how the social characteristics of judges, prosecutors, and defense attorneys affect disparity. Research studies should continue to examine how specific punishment policies (e.g., mandatory minimums, risk assessments, and sentencing guideline provisions and departures) may be the sources of racial and ethnic disparity.

Article

A large amount of American law-related popular culture is comedic. Inexpensive literature, Hollywood movies, and prime-time series routinely include images of amusing lawyers and accounts of hilarious trials. These pop cultural works entertain readers and viewers and in some instances simultaneously speak to the public’s resentment of powerful legal institutions.

Article

From watching imported American popular culture dramas focusing on criminal justice, French television viewers have become confused as to how their own legal system really works. They have erroneous expectations of behaviours in court, like addressing judges by the wrong title, a title that comes from poor dubbing. Or they will refuse to answer questions, thinking they have Fifth Amendment protections, when they do not. They know very little of the organization of courtroom space. Since it is forbidden by law to take photographs or film trials in France, it is difficult to bring accurate court images to the public. The French produce police dramas, but very few series or made-for-television movies on justice, thus providing no alternatives for these erroneous criteria. They do, however, produce documentaries and docudramas dealing with past investigations or with timely issues such as recidivism or reintegration into society after prison. Documentaries, although pertinent, give viewers only one-shot access to the representations of justice and the legal professions they contain. The do not facilitate the acquisition over time of a legal culture. In addition to the confusion, the French have a negative image of lawyers as motivated by money and politics rather than justice. Films and French television fictions are responsible for this impression. Television news reports are short and give incomplete accounts of the law or on-going proceedings. Sometimes lawyers are interviewed in these reports, but never prosecutors or judges. Judges and prosecutors are magistrats, not lawyers. They train in different institutions from lawyers and are civil servants, so they are not as likely as lawyers to be making a lot of money, nor are they free to make public statements. The image of these professions is consequently more positive in the French imagination as portrayed in the popular culture.

Article

Therapeutic jurisprudence (TJ) is a multidisciplinary approach to assessing the impact of the law itself on the emotional and psychological experiences of all those who have contact with the legal system. Variously described as a theory, a method, a lens, or a process of analysis, its distinguishing feature is to conceive of the law as a “therapeutic agent.” That agency can cause both therapeutic and antitherapeutic consequences. By investigating and assessing the social, professional, and political contexts in which laws are made and applied, TJ seeks to identify how unintentional harms are caused and suggests ways to remedy them. It also identifies opportunities to enhance psychological strengths and positive emotional experiences to improve legal outcomes. It has commonalities with positive criminology, restorative justice, procedural justice, and other less adversarial approaches within the criminal justice system. Since being founded by David Wexler and Bruce Winick in the 1980s as a project to improve the experiences of those subjected to mental disability law in the United States, the theory and methodology of TJ has evolved, and its influence has expanded to virtually every major legal system and jurisdiction. TJ was at the core of the operating philosophy of the problem-solving court movement, which now operates across nine countries. It is increasingly influential in new approaches to probation and offender treatment models in the United States, Europe, Australia, and New Zealand, and in influencing access to justice policies in India and Pakistan. It offers some common conceptual principles for the development of First Nations courts, tribunals, and dispute resolution programs seeking to eradicate systemic, monocultural bias in postcolonial criminal justice systems which tend to lead to intractable, carceral overrepresentation. TJ is currently undergoing a process of “mainstreaming” across disciplines and internationally. This involves encouraging lawyers and other criminal justice workers outside specialist court and diversion jurisdictions to adopt therapeutic outlooks and practices. So far there have been projects to mainstream TJ principles in police interviewing, risk assessment, diversion, criminal settlement conferences, bail, sentencing, conditional release from custody, and appeals. The sorts of reforms, innovations, and changes in mindsets suggested by TJ work has also sparked resistance and criticism. The latter ranges from constructive concerns about conceptual vagueness, risks of paternalism, and coercion to absolute ideological opposition on the grounds that TJ allegedly advocates for the complete abandonment of the adversarial system and strongarms defendants into surrendering their constitutional and due process rights.

Article

Despite political interference and jurisdictional partiality, the formal institutions of international criminal justice are positive development for global governance in their existence alone. The unique aims for global justice enunciated in the Preamble to the Rome Statute are a manifesto for how humanity expects to be protected from atrocity, and where responsibility should lie. As the example of rape in war demonstrates, translating these noble aspirations into trial practice and justice outcomes is often sullied by discriminatory externalities common in domestic criminal justice and exacerbated as the degree of victimization escalates. The lasting measure of the courts and tribunals is not successful prosecutions but rather the satisfaction of legitimate victim interests.

Article

Criminal justice and its institutions are key objects of popular culture and attract extensive media attention. The portrayal of the justice system, its rules, professions, and institutions has been invigorated with the invention of new media technology. The authorities’ reaction to wrong doing has proven not less exciting to the audience than the criminal acts themselves. French sociologist Emile Durkheim emphasized that every member of society has an interest in social cohesion and wishes to see perpetrators appropriately punished. The media plays to this basic inclination. From the reactions of the justice system to crime people take clues not only for its effectiveness but the public also wants to see its basic values represented in the work of officials and their decisions. Therefore, aspects of procedural and distributive justice are picked up by popular imagination and exploited to the full by media producers. Beyond recognition that media depictions of criminal justice will follow media conventions and will therefore be distorted in systematic ways, it has to be acknowledged that those representations and the expectations they formed have become a major force in society. Political repercussions and influences on how crime is dealt with are a consequence.

Article

Elise Sargeant, Julie Barkworth, and Natasha S. Madon

Fairness and equity are key concerns in modern liberal democracies. In step with this general trend, academics and practitioners have long been concerned with the fairness of procedures utilized by the criminal justice system. Definitions vary, but procedural justice is loosely defined as fair treatment and fair decision-making by authorities. In the criminal justice system, the procedural justice of authorities such as police officers, judicial officers, and correctional officers is evaluated by members of the public. Procedural justice in the criminal justice system is viewed as an end in and of itself, but it is also an opportunity to yield various outcomes including legitimacy, public compliance with the law, cooperation with criminal justice officials, and satisfaction with criminal justice proceedings and outcomes.

Article

Valmaine Toki

In many jurisdictions, including Australia, New Zealand, Canada, United States and across the Pacific, offending rates for Indigenous peoples continue to be disproportionate to population size. For example, in New Zealand, Māori comprise over half the male prison population yet constitute only 15% of the national population. In Canada and the United States, where Indigenous people constitute 3.6 and 1.7% of the population, respectively, imprisonment rates are also disproportionate. Notwithstanding attempts to address these statistics, the overrepresentation of Indigenous peoples in prisons continues. However, Te Kooti Rangatahi, a marae-based (traditional-setting) “Indigenous court” for youths, has demonstrated some initial success as a unique initiative. This “court” integrates tikanga Māori (Māori culture) into the judicial process, with the aim of facilitating the reconnection of young people with their culture and involving the wider community. Te Kooti Matariki, an Indigenous court for adults, employs tikanga but within a mainstream court. A comparative perspective with the Navajo Common Law and Navajo Nation Tribal Court system demonstrates that the inclusion of Indigenous concepts into Western legal systems is not novel and should not in and of itself prevent the extension of Te Kooti Rangatahi and Te Kooti Matariki’s jurisdictions.

Article

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

Article

Military justice films occupy a unique space in film and legal studies, marrying two popular genres—courtroom dramas and military-themed films. This article examines the military justice film as a distinct genre in popular culture depictions of crime and punishment. First, it provides a brief overview of the history of the military justice film, from Classical Hollywood to the present. It then examines what sets military justice films apart from civilian courtroom dramas—the context, hierarchies, procedural rules, and broader implications of justice in the military context. It discusses why military justice films remain an enduring genre, with their appeal to universal themes and archetypal narratives. It further describes how military justice films have paralleled military history and serve as a critique of military, political, and national security policies. The article concludes by examining contemporary depiction of military justice in film, analyzing how the genre has changed since its inception, and discussing how military justice films may continue to evolve to keep pace with shifting norms of both law and warfare.

Article

Joachim J. Savelsberg and Wahutu Siguru

Today, genocides and other episodes of mass violence are, under specific circumstances, subject to extensive media reporting. A case in point is the mass violence in Darfur, unfolding during the first decades of the 21st century and categorized as genocide by many, including the International Criminal Court. Media reporting about Darfur shows noteworthy patterns. They are revealed by a study supported by the National Science Foundation, involving content analysis of 3,387 reports and opinion pieces published in prominent newspapers of eight countries in the Global North, accompanied by expert interviews, and a doctoral dissertation on the journalistic field in Africa and its reporting on Darfur. First, today’s media reporting replaces denial with acknowledgment. Second, it frames the violence most often as criminal, and frequently as genocidal, even though humanitarian emergency and armed conflict frames also fare prominently. Third, throughout the history of reporting, Africa correspondents, central actors in the journalistic field, adapt to opportunities and external pressures from surrounding social fields. Economic forces (media markets) and politics affect the frequency of reporting. The criminal justice-oriented human rights field, the humanitarian field, and the diplomatic field influence the frames through which the violence is interpreted. Fourth, the criminal justice-oriented human rights field is especially effective in coloring reports, despite substantial barriers between criminal courts and the journalistic field. Fifth, reporting in all countries is affected by interventions by international institutions, including the UN Security Council, the International Commission of Inquiry on Darfur, and the International Criminal Court (ICC). The ICC’s decision to charge Sudan’s President Omar al-Bashir with war crimes, crimes against humanity, and genocide, for example, intensified reporting in all countries. Sixth, the receptivity to the criminal justice frame varies by country. Seventh, in addition to cross-country similarities and differences within the Global North, a comparison of journalistic fields in the Global North with those in Africa shows distinct patterns, but also astonishing similarities between Global North and African reporting on Darfur.

Article

Legal discourse is language that people use in a globalizing and multicultural society to negotiate acceptable behaviors and values. We see this played out in popular cultural forums such as judicial television dramas. In the American context, television judge shows are virtually synonymous with reality courtroom television. There have been a few judge shows, but these have been completely overshadowed by the success of reality courtroom television. The first reality courtroom show was The People’s Court, and its history and early success are discussed in the opening section of this article. The next section looks at the television judge show landscape after the first incarnation of The People’s Court up to the present day in the United States. The third section is dedicated to a discussion of television judge shows outside the United States, chiefly in Europe. The focus is on German and Dutch versions and on the ways in which they differ from the original U.S. versions. This section also briefly looks at the effects of modern digital technology on the judicial genre and asks whether enhanced viewer engagement and crowdsourced justice in the near future will force judges to bow to the popular will, on and off the small screen.

Article

The dawn of the 21st century marked a turning point in the history of the American death penalty. Politically, the death penalty seemed vulnerable. A wave of abolitionism not seen since the Progressive Era took hold in the 2000s, as six states abandoned the death penalty, and governors in five others instituted moratoria, promising to use their executive power to stay all executions while they remained in office. While the Supreme Court remained committed to the constitutionality of the death penalty, it slowly chipped away at it in a series of decisions that narrowed the range of persons whom the state could execute. Public support for the death penalty, already in decline during the late 1990s, continued to fall in the 21st century. A number of factors depressed support for the death penalty to levels not seen since the early 1970s: a decline in violent crime and fear of crime; highly publicized DNA-based exonerations of death-row inmates; and wariness of the cost of maintaining the death penalty, particularly during the great recession of the late 2000s. The use of the death penalty was declining as well. The expansion of life without parole as an alternative punishment in the 1990s and 2000s gave juries in some states harsh alternatives to death sentences that they did not previously have. Longer-term changes to the judicial and penal administration of the death, meanwhile, continued to make the path between conviction and execution longer and more difficult for state officials to traverse. Most offenders sentenced to death since the 1970s were not (or have not yet been) put to death, and the average wait on death row for those who have been executed has grown to over a decade and a half. Growing problems with the practice of lethal injection, meanwhile, have posed new problems for states seeking to execute capital defendants in the 2000s, producing new legal battles and bringing executions nationwide to a temporary halt in 2007–2008. The 2016 election of Donald J. Trump to the presidency of the United States, however, may portend a slowing or reversing Americans’ 21st-century turn away from the death penalty.

Article

It is often stated that it is not possible to completely understand genocide: its horror and suffering defy complete representation. For those not immediately affected by the horror, representations of genocide through photography and film are often the primary form through which genocide is encountered. It is possible to discern two key questions underpinning scholarship that engages with representations of genocide in photography and film: First, to what extent can photos and film document and thereby provide evidence of genocide? One version of this question is linked to that of examining “truths” about genocide—whether genocide occurred and understanding its intricacies. Another leads to questions about the role of photography as evidence and its limits in providing “truths.” The second central question in the scholarship concerns the role that photos and film hold in bearing witness to genocide. Here, the scholarship tends to be framed not so much a question as an impetus to “never forget” or “never again.” During the Khmer Rouge genocide, somewhere between 1.5 and 2.25 million people were killed. While most killings do not meet the legal elements of genocide, the event is nevertheless colloquially known as genocide. Among the most known photographs from the period are the photographs taken at the security center S-21. Today, they stand as representative of the victims of the Khmer Rouge and have appeared at genocide museums, research archives, institutions of art, and as illustrations for various legal claims. The debates that have accompanied these appearances are illustrative of the debates on images of genocide more generally, focusing on, for example, limits of representation, the appropriate place for such photographs. and claims of voyeurism. Numerous films have been made about the Khmer Rouge period, some of which have been major commercial successes, others have been independent documentaries. Films such as The Killing Fields and The Missing Picture can be seen as bearing witness to the genocide, whereas documentaries such as S21: The Khmer Rouge Killing Machine pose intricate questions about responsibility. Finally, it is noteworthy to pay attention to the way film appears within criminal proceedings, as this sheds light on the different understandings of evidence when the task is to bear witness and assign responsibility.

Article

Joachim J. Savelsberg and Suzy McElrath

Structural and cultural changes in the modernization process, combined with contingent historical events, gave rise to a human rights regime. It is codified in the Universal Declaration of Human Rights, promulgated after World War II and the Holocaust. Yet, only the gravest of human rights violations have been criminalized. First steps were taken beginning in the 19th century with The Hague and Geneva Conventions, constituting the Laws of Armed Conflict. They were followed by the Convention for the Prevention and Punishment of the Crime of Genocide (1948), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and eventually the Rome Statute (1998) on which the first permanent International Criminal Court is based. Some scholars even observe a justice cascade. Enforcement of the norms entailed in the above legal documents benefits from opportunities such as increases in international interdependencies, the buildup of international organizations, and the proliferation of nongovernmental organizations in the human rights realm. Challenges arise from partially competing principles such as conflict settlement and survival of suffering populations as cultivated by social fields such as humanitarianism and diplomacy and from a lack of law enforcement. While international institutions play a crucial role, much international law is implemented through domestic courts. International penal law pertaining to human rights has affected domestic policymaking in the human rights realm but also nation-level policies pertaining to the punishment of common crimes. Finally, debates continue to rage regarding the effects of the criminalization of grave human rights violations. Proponents have thus far focused on potential deterrent effects, but a new line of thought has begun to take cultural effects seriously. Its representatives identify a redefinition of those responsible for mass violence as criminal perpetrators and substantial representational power of international criminal law against those who bear responsibility for the gravest of human rights violations.