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Author

Vincent Chiao

Other affiliations: Harvard University
Bio: Vincent Chiao is an academic researcher from University of Toronto. The author has contributed to research in topics: Criminal law & Criminal justice. The author has an hindex of 6, co-authored 23 publications receiving 105 citations. Previous affiliations of Vincent Chiao include Harvard University.

Papers
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Journal ArticleDOI
TL;DR: In this article, the same concerns of fairness, accountability and transparency apply, with even greater urgency, to existing modes of decision-making in criminal justice, and they are not irresolvable.
Abstract: Over the last few years, legal scholars, policy-makers, activists and others have generated a vast and rapidly expanding literature concerning the ethical ramifications of using artificial intelligence, machine learning, big data and predictive software in criminal justice contexts. These concerns can be clustered under the headings of fairness, accountability and transparency. First, can we trust technology to be fair, especially given that the data on which the technology is based are biased in various ways? Second, whom can we blame if the technology goes wrong, as it inevitably will on occasion? Finally, does it matter if we do not know how an algorithm works or, relatedly, cannot understand how it reached its decision? I argue that, while these are serious concerns, they are not irresolvable. More importantly, the very same concerns of fairness, accountability and transparency apply, with even greater urgency, to existing modes of decision-making in criminal justice. The question, hence, is comparative: can algorithmic modes of decision-making improve upon the status quo in criminal justice? There is unlikely to be a categorical answer to this question, although there are some reasons for cautious optimism.

25 citations

Book
15 Oct 2018
TL;DR: In this article, the authors argue that the legitimacy of criminal law depends in part on the democratic and egalitarian character of the institutions it supports, and in part upon its supporting those institutions by means that are themselves consistent with democratic and just principles.
Abstract: What is the criminal law for? At its most elemental, criminal law secures the possibility of a shared life under stable and just public institutions. In the age of the administrative state, criminal law performs this task by stabilizing cooperation across a wide range of contexts, from backstopping compliance with tax law to protecting the integrity of a nation’s fisheries. How should we decide when this is a legitimate use of the criminal law? The “public law” conception sketched in this book suggests that because the criminal law is a public institution, it should be evaluated by the very same values that we structure our evaluation of public institutions generally. In contrast to familiar forms of retributivism, the public law conception starts from the political morality of public institutions, rather than the interpersonal morality of private relationships. In a society with democratic and egalitarian aspirations, the legitimacy of the criminal law depends in part upon the democratic and egalitarian character of the institutions it supports, and in part upon its supporting those institutions by means that are themselves consistent with democratic and egalitarian principles. The particular account of those principles sketched in this book is democratic, egalitarian without being equalizing, and focused on a form of freedom—effective access to central capability—as its currency of evaluation. This approach provides a distinctive and illuminating framework for assessing a wide range of problems in criminal law and policy, from mass incarceration, to over-criminalization and the allocation of procedural rights.

22 citations

Journal ArticleDOI
TL;DR: The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states as mentioned in this paper, as a rule-enforcing institution, deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage.
Abstract: The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states. In the context of the regulatory state, the criminal law is a coercive rule-enforcing institution – regardless of whether it also serves the ends of retributive justice. As a rule-enforcing institution, the criminal law is deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage. As a coercive institution, the criminal law requires justification as an instance of legitimate state authority. The operation of criminal justice institutions should therefore not be evaluated by reference to a distinct set of criteria, but should be evaluated by the same criteria that apply to coercive public institutions generally.

17 citations

Posted Content
TL;DR: The authors argue that a deontological theory of punishment cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered to be unjust, and propose a prioritarian metric for evaluating the use of custodial sanctions in creating and allocating social advantage.
Abstract: An influential strain in the literature on state punishment analyzes the permissibility of punishment in exclusively deontological terms, whether in terms of an individual's rights, the state's obligation to vindicate the law, or both. I argue that we should reject a deontological theory of punishment because it cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered — including by proponents of deontological theories — to be unjust. The failure of deontological theories suggests a minimum criterion of adequacy for a theory of punishment: it must take aggregation seriously such that it returns plausible results when scaled up from individual cases to large public institutions. In this vein, I briefly sketch a prioritarian metric for evaluating the use of custodial sanctions in creating and allocating social advantage.

12 citations

Journal ArticleDOI
TL;DR: This paper argued that a deontological theory of punishment cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered to be unjust, and they briefly sketch a prioritarian metric for evaluating the use of custodial sanctions as a means of creating and allocating social advantage.
Abstract: An influential strain in the literature on state punishment analyzes the permissibility of punishment in exclusively deontological terms, whether in terms of an individual’s rights, the state’s obligation to vindicate the law, or both. I argue that we should reject a deontological theory of punishment because it cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered—including by proponents of deontological theories—to be unjust. The failure of deontological theories suggests a minimum criterion of adequacy for a theory of punishment: it must take aggregation sufficiently seriously that it returns plausible results when scaled up from individual cases to large public institutions. In this vein, I briefly sketch a prioritarian metric for evaluating the use of custodial sanctions as a means of creating and allocating social advantage.

11 citations


Cited by
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TL;DR: In this paper, a judge in some representative American jurisdiction is assumed to accept the main uncontroversial constitutive and regulative rules of the law in his jurisdiction and to follow earlier decisions of their court or higher courts whose rationale, as l
Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

2,050 citations

01 Jan 2016

930 citations

Journal Article

78 citations

Dissertation
01 Jan 2018
TL;DR: In this article, the authors examined whether indigenous peoples' demands for access to their cultural practices can be accommodated within criminal law, and concluded that the claims of indigenous peoples cannot be.
Abstract: This thesis is the conclusion of doctoral research that pursued to examine whether indigenous peoples’ demands for access to their cultural practices can be accommodated within criminal law. In a globalised context in which states become increasingly multicultural this question raises fear of social fragmentation and the anxiety for achieving unity. Certainly, Rwanda and Kosovo evidence that claims to access culturally diverse practices may lead to war or even genocide. The context of the thesis is a more benign form of response to these claims: accommodation. While accommodation in general has received great attention from scholars (Kymlicka 1989, Gutmann et al 1994, Tully 1995), within criminal law the only focus has been cultural defences (Renteln 2004, Kymlicka et al 2014). However, little research has been conducted to understand the broader implications of this phenomenon for both the accommodated and the accommodating. The research aims to shed light on these broader implications of accommodation by exploring it within criminal law. Certainly, the simplicity and individualised nature of cultural defence conceals what is at stake for both the accommodated and the accommodating. Specifically, it conceals how criminal law cannot be responsive to the claims of minorities because it seeks to maintain the practices of the constitutional order of which criminal law is part. The result is that the claims of indigenous peoples cannot be accommodated. In order to uncover these implications, the research employs social holism (Pettit 1998) to develop a broader understanding of criminal law as a socio-cultural practice, which enables an adequate description and assessment of the diversity of claims to recognition that minorities make to the state of which they are part. In broadening the view the claims of minorities become linked to their position within the constitutional order (Tully 1995), and then the question arises as to whether minorities have been unjustly excluded or included (Lindahl 2013) in that order, which may lead to recognise a new plurality of responses that the state and its criminal law should provide to them. By broadening the understanding of criminal law it is enabled an adequate framework for the assessment of the phenomenon of accommodation. Certainly, this is necessary for claims to access diverse cultural and social practices to be met with justice, for the state’s responses need to be sensitive to the diversity of claims put forward by minorities, without overlooking that the state as well need to access its particular social and cultural practices.

46 citations