Showing papers in "Journal of Criminal Law & Criminology in 1982"
TL;DR: One of the most distressing and troublesome aspects of the operation of the criminal justice system in the United States is the severe disproportionality between blacks and whites in the composition of prison populations.
Abstract: One of the most distressing and troublesome aspects of the operation of the criminal justice system in the United States is the severe disproportionality between blacks and whites in the composition of prison populations. Although blacks comprise roughly one-eighth of the population, they represent about one-half of the prison population. Thus, the race-specific incarceration rates (the ratio of prisoners to population within each racial group) are grossly disproportionate. This disproportionality has been a source of major concern, largely because it suggests the possibility of gross injustice in the criminal justice system. The racial differences in imprisonment are reflected in Table 1, which presents demographic-specific incarceration rates (in units of prisoners per 100,000 persons within each indicated demographic group) in state prisons (not including federal prisons or local jails) for blacks and whites and their total.1 This table highlights the great sensitivity of in-
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TL;DR: Research on the relationship between perceplions of legal sanctions and self-reported illegal behavior indicated that certainty acted to deter illegal acts although sever-
Abstract: Recent refinements in the deterrence literature have recognized that deterrence involves a perceptual process' This has led deterrence researchers away from aggregate data analysis into survey research2 The latter literature is now voluminous, and has focused on the relationship between perceplions of legal sanctions and self-reported illegal behavior As with the earlier, aggregate level research, the perceptual studies indicated that certainty (risk) acted to deter illegal acts although sever-
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TL;DR: This research signals an important shift in the focus and assumptions underlying criminological research, as it focuses on the purpose and application of laws prohibiting sexual assault.
Abstract: Sociologists have long been concerned with the origin, purpose, and application of the criminal law.1 Due in part to the feminist movement2 recent research has focused on the purpose and application of laws prohibiting sexual assault.3 This research signals an important shift in the focus and assumptions underlying criminological research. Implicitly, traditional research4 and theory5 have assumed that criminal events
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TL;DR: In this article, the authors presented an on-line book for reading toward a just correctional system, which they described as "a book that becomes a choice of someone to read, many in the world also love it so much".
Abstract: Read more and get great! That's what the book enPDFd toward a just correctional system will give for every reader to read this book. This is an on-line book provided in this website. Even this book becomes a choice of someone to read, many in the world also loves it so much. As what we talk, when you read more every page of this toward a just correctional system, what you will obtain is something great.
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TL;DR: Recognizing the history of systematic biases in the states' use of the death penalty, the Supreme Court has tried to eliminate procedural irregularities from the death sentencing process.
Abstract: No legal sanction has produced more debate and greater controversy than capital punishment. Although the debate on the death penalty encompasses many issues, including its deterrent effect and moral justification, a recurrent theme has been the manner in which it has been applied. Critics of capital punishment have pointed out that, as historically applied, the death penalty has been discriminatory, with a greater proportion of executions for blacks compared with whites. This position was argued by counsel for Furman in the landmark case, Furman v. Georgia.' Other sources of institutional discrimination and bias in capital cases, such as jury selection procedures, have also been identified. Recognizing the history of systematic biases in the states' use of the death penalty, the Supreme Court has tried to eliminate procedural irregularities from the death sentencing process. In two notable cases,
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TL;DR: In the case of the Lotus case as discussed by the authors, the passive personality principle was not sufficient for Turkey to take jurisdiction and the Permanent Court of International Justice (PCIJ) declined to decide the passive-personality issue on the Boz-Kourt case, but held that a Turkish flag may be assimilated to the PCIJ.
Abstract: ion of sovereignty or the institutions or functions of government would be an appro1982] 1137 1138 CHRISTOPHER L. BLAKESLEY [Vol. 73 tors of actual and inchoate offenses which damage or threaten to damage state security, sovereignty, treasury, or governmental function. It is the only accepted theory which allows jurisdiction over conduct which threatens potential danger to the above-mentioned abstractions or functions. Because of the significant dangers the protective principle poses to relations among nations, application of the theory is limited to those recognized and stated abstractions or functions. 73 With very few exceptions, national penal codes throughout the world recognize this principle and its limitations. 74 priate trigger for the protective principle. Of course, it is very difficult to determine whether or not such damage has actually occurred. Thus, potential damage or danger is sufficient. See, RESTATEMENT DRAFT, supra note 1, §§ 402-03, which refines § 33 of the old Restatement but retains the traditional bases of extraterritorial jurisdiction. This refinement will be discussed in detail infra in text accompanying notes 147-77. With regard to the protective principle, Harvard Research, supra note 5, at 440, describes the traditional theory: 7. A state has jurisdiction with respect to any crime committed outside its territory by an alien against the security, territorial integrity or political independence of that state, provided that the act or omission which constitutes the crime was not committed in exercise of a liberty guaranteed the alien by the law of the place where it was committed. 8. A state has jurisdiction with respect to any crime committed outside its territory by an alien which consists of falsification or counterfeiting, or an uttering of falsified copies or counterfeits, of the seals, currency, instrument or credit, stamps, passports, or public documents, issued by the state or under its authority. The RESTATEMENT DRAFT, supra note 1, § 402(3), provides that jurisdiction to prescribe obtains with regard to \"Certain conduct outside its territory by persons not its nationals which is directed against the security of the state or certain state interests.\" 73 United States v. Pizzarusso, 388 F.2d at 10; United States v. Egan, 501 F. Supp. 1252, 1257 (S.D.N.Y. 1980); United States v. Keller, 451 F. Supp. 631, 635 (D.C.P.R. 1978); Note, supra note 72, at 1193. 74 See, e.g., C. Pr. Pn. art. 694; Harvard Research, supra note 5, at 543, 547-51; Shavia & Bishop, The Authori of the State: Its Range with Respect to Persons and Places, in MANUAL OF PUBLIC INTERNATIONAL LAW 311, 363-64 (M. Sorensen ed. 1968). Probably the most famous international case actually involving the principle of objective territoriality also involved, and well illustrates, the protective principle. S.S Lotus (Fr. v. Turk.), 1927 P.C.I.J., ser. A, No. 10 (judgment of Sept. 7). The Lotus case stands for the principle of objective territoriality (perhaps including the floating territorial principle). In the Lotus case, Turkey prosecuted and convicted the French officer of the French flag merchant vessel, the Lotus, for manslaughter. The Lotus had collided with the Turkish flag vessel, the Boz-Kourt, causing much property damage and the loss of eight Turkish lives. France objected to the Turkish prosecution, claiming that Turkey had no basis for jurisdiction under any principle of international law. France and Turkey submitted the dispute to the Permanent Court of International Justice for resolution of this dispute over jurisdiction. France argued that an officer of a ship on the high seas can only be held to obey the laws and regulations of the flag state and that international law prohibited Turkey from taking jurisdiction simply by reason of the nationality of the victims; France argued that the passive personality principle was not sufficient for Turkey to take jurisdiction. The Permanent Court of International Justice declined to decide the passive personality issue, but held that Turkey's assumption ofjurisdiction could be predicated on the fact that the effects had occurred on the Boz-Kourt, which, being a Turkish flag vessel, was a place assimilated to Turkish territory for the purposes of the case. See RESTATEMENT, supra note 16, at 86. This type of jurisdiction may more aptly be called the \"floating objective territorial principle.\" See Empson, The Application of Criminal Law to Acts Committed Outside the Jurisdiction, 6 AM. CRIM. L.Q. 1982] EXTRA TERRITORIAL CRIME 1139 In sum, foreign and domestic commentators have considered the United States traditionally to be essentially adherents of the territorial theory. However, adherence to a strict interpretation of territorial jurisdiction has been tempered by fictional extension of the concept of territoriality, via the objective and subjective territorial theories, and by exception to it in theories such as the protective principle. IV. UNIVERSAL JURISDICTION International law provides that there are certain offenses for which any nation may assert jurisdiction once the nation obtains personal jurisdiction over the accused; such offenses are those so heinous that any of the community of nations may prosecute. The most ancient offense of universal interest is probably piracy. With regard to universal jurisdiction over piracy, Hackworth writes: \"It has long been recognized and well-settled that persons and vessels engaged in piratical operations on the high seas are entitled to the protection of no nation and may be punished by any nation that may apprehend or capture them.\"' 75 The Geneva Convention on the High Seas, in 1958, article 19, states: 32 (1967); George, £xtraterriton'al Application of Penal Legislation, 64 MICH. L. REv. 609, 613 (1966). The French and the dissent in the case argued that the law of the flag-vessel should govern the pilot. This position was later adopted by two major international conventions relating to navigation on the high seas and probably reflects customary international law today. See, e.g., United States v. Williams, 617 F.2d 1063, 1090 (5th Cir. 1980); D. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAv 93 (2d ed. 1979). The French opposition to the assertion of jurisdiction in cases occurring on vessels on the high seas eventually won out, at least with regard to the signatories at the 1952 Brussels International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or other Incidents of Navigation. The parties to this convention were: Szgnatories: Germany, Belgium, Brazil, Denmark, Spain, France, United Kingdom, Greece, Italy, Monaco, Nicaragua, Yugoslavia; Ratifcations: United Kingdom, France, Spain, Yugoslavia, Vatican, Egypt, Portugal, Belgium, Argentina; Accessions: Switzerland, Costa Rica, Cambodia, French Overseas Territories, the Republic of Togo and the Cameroons, Haiti, Vietnam. Quoted in 4 BRITISH SHIPPING LAWS COLLISIONS AT SEA No. 1285, 902-03 (McGuffie ed. 1961); 1958 Geneva Convention on the High Seas, April 29, 1958, art. 11, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. at 82 [hereinafter cited as Geneva Convention], states: 1. In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag state or of the state of which such a person is a national. 2. In disciplinary matters, the state which has issued a masters certificate or a certificate of competence or license shall alone be competent. After due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the state which issued them. 3. No arrest or detention of the ship, even as a measure of investigation shall be ordered by any authorities other than those of the flag state. Quoted in 6 M. WHITEMAN, DIGEST OF INTERNATIONAL LAw 240 (1968). 75 2 G. HACKWORTH, INTERNATIONAL LAW 681 (1940). See R. MERLE & A. VITU, TRAITE DE DROIT CRIMINEL 319 (1967). 1140 CHRISTOPHER L. BLAKESLEY [Vol. 73 On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seize may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. 76 In addition to piracy, several other crimes are of universal or nearly universal interest. These crimes, many of which have been made subjects of international conventions aimed at their elimination, include slave trading,77 war crimes,78 highjacking and sabotage of civil aircraft, 79 genocide,80 and terrorism.8 t There is a growing trend to include 76 Geneva Convention, supra note 74, at art. 19. See, Dickinson, Is the Crime of Piray Obsolete? 38 HARV. L. REV. 334 (1925); The Marianna Flora, 24 U.S. (Wheat) 1, 40 (1826): \"Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation; for they, are in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war.\" 77 Geneva Convention, supra note 74, at arts. 13, 22. 78 See generalo T. TAYLOR, NUREMBERG AND VIETNAM (1970); U.S. ARMY, DEPARTMENT OF THE ARMY FIELD MANUAL, FM 27-10 (rev. ed. 1976); In re Yamashita, 327 U.S. 1 (1946); United States v. Calley, 22 C.M.A. 534, 48 C.M.R. 19 (1973); I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1963); Bond, Application of/he Law of War to International Conflicts, 3 GA. J. INT'L & COMP. L. 345 (1973); Taubenfeld, The
TL;DR: (Adopted at the Second Session of the Fifth National People's Congress on July 1, 1979, and amended for the first time in according with the Decision on Amending the Criminal Procedure Law of the People's Republic of China on March 17, 1996)
Abstract: (Adopted at the Second Session of the Fifth National People's Congress on July 1, 1979, and amended for the first time in according with the Decision on Amending the Criminal Procedure Law of the People's Republic of China adopted at the Fourth Session of the Eighth National People's Congress on March 17, 1996, and amended for the second time in according with the Decision on Amending the Criminal Procedure Law of the People's Republic of China adopted at the Fifth Session of the 11th National People's Congress of the People's Republic of China on March 14, 2012)
TL;DR: According to the United Bureau of Investigation Uniform Crime Reports (UCR), crime increased by nine percent in 1980 and violent crime rose by eleven percent as discussed by the authors, indicating that crime is once again a major issue on the political agenda.
Abstract: Crime is once again a major issue on the political agenda. At all levels of government, policymakers are grappling with the question of what government can and should do to stem the tide of lawlessness. It is not hard to understand this concern. Just a glance at the morning headlines or the evening news reveals the American preoccupation with crime and violence. Although the stories in the media are often sensationalized, the pervasive problems they symbolize are nonetheless real and urgent. Crime-particularly violent crime-is a grave threat to the safety of all Americans. The Federal Bureau of Investigation Uniform Crime Reports (UCR) measure the amount of crime actually reported to the police.' According to the UCR, crime increased by nine percent in 1980 and violent crime rose by eleven percent.2 On the average, violent crime (murder, forcible rape, robbery, and aggravated assault) is rising at an annual rate of five percent. In 1971 there were 396 reported violent crimes per 100,000 people. By 1980 the rate was 581 violent crimes per 100,000 persons.4 Historically, a great deal of crime is never reported to the police.5 The other major source of crime data, the National Crime Survey (NCS), sponsored by the Bureau of Justice Statistics, therefore attempts
TL;DR: The trial of the gang of four and six other members of the Lin-Jiang cliques has attracted world-wide attention as mentioned in this paper, and the Chinese press has pictured the trial as a landmark: the end of a lawless era, a successful test of the new legal system and a demonstration that all are equal before the law.
Abstract: China' trial of the “ gang of four ” and six other members of the “ Lin-Jiang cliques ” has attracted world-wide attention.* The Chinese press has pictured the trial as a landmark: the end of a lawless era, a successful test of the new legal system, and a demonstration that all are equal before the law.1 Contrary to Chinese leaders’ expectations, however, many observers have considered the trial as essentially a political rather than a legal exercise.2 On the other hand, the holding of this trial appeared to reflect, among other things, Beijing' desire to publicize its commitment to legality, and the controlled and selected reporting of the court sessions has given the outside world glimpses of the judicial process under China' new and emerging legal order.
TL;DR: In this paper, the authors treat as variables only the practices of the criminal justice system, mainly the punishments the law may threaten and impose, and assume that the moral or material cost of enforcing them by punishment need not be
Abstract: Criminal laws prohibit some acts and try to deter from them by conditional threats which specify the punishments of persons who were not deterred. Sufficiently frequent imposition of these punishments by courts of law makes the threats credible. If the community feels that they are deserved, punishments also gratify its sense of justice, and help to legitimize the threat system of the criminal law by stigmatizing crime as morally odious. The effectiveness of the criminal justice system depends not only on its own practices, but also on independent social and psychological conditions which influence the legitimate and the criminal opportunities open to individuals, their reactions to each, and their responsiveness to the legal threats meant to deter them from crime. Opportunities vary greatly from individual to individual and group to group; so do inclinations; and so does responsiveness to threats. Here, however, I shall treat as variables only the practices of the criminal justice system, mainly the punishments the law may threaten and impose. In addition to deterring people from becoming offenders by making the threats of the law credible, punishments may also restrain the actual convicts. The death penalty does so altogether and permanently, while punitive confinement reduces the time available to convicts for extramural offenses, and may rehabilitate some, so that after release they commit fewer offenses than they might otherwise have committed.1 Let me assume finally that, in the instances with which I am concerned, the prohibitions of the criminal law are justified, and that the moral or material cost of enforcing them by punishment need not be
TL;DR: The author would like to thank Nancy Ames, Mae Kuykendahl, Charles Wellford, and two anonymous reviewers from the Federal Judicial Center for their comments on earlier versions of this article.
Abstract: * Revised version of a paper presented at the annual meetings of the American Society of Criminology, San Francisco, 1980. ** Assistant Professor of Sociology, Case Western Reserve University. The author would like to thank Nancy Ames, Mae Kuykendahl, Charles Wellford, and two anonymous reviewers from the Federal Judicial Center for their comments on earlier versions of this article. The article would not have been possible without the assistance of James McCafferty of the Administrative Office of United States Courts.
TL;DR: There has been a return to justice and away from the treatment model, at least theoretically, but the problem has not been resolved and legislation and sentences continue to reveal an untidy compromise between rehabilitative (treatment) and treatment.
Abstract: Penologists usually inquire: "Do rehabilitation programs reduce recidivism?"' Recently the effectiveness of all programs has been questioned.2 In turn, philosophers have debated a moral problem: "Should criminals be punished for their past crimes according to what is deserved, or should they be subjected to future-oriented treatment programs and released when rehabilitated?" Lately there has been a return to justice and away from the treatment model, at least theoretically, but the problem has not been resolved.3 Legislation and sentences continue to reveal an untidy compromise between rehabilitative (treatment) and
TL;DR: Before the invention of the prison in Europe and North America, the whip had been a ubiquitous instrument of penal practice and gave formal expression to the punitive obsessions of medieval criminal justice.
Abstract: Before the invention of the prison in Europe and North America, the whip had been a ubiquitous instrument of penal practice. Together with other physical punishment and tortures, it gave formal expression to the punitive obsessions of medieval criminal justice. Although these punishments have fallen into disuse in most of the modern world, the philosophy of retribution continues to have popular appeal. Politicians and editors of popular newspapers, who are aware of the intensity of public feeling on law and order issues, frequently capitalize on these feelings by calling for more severe penal measures such as the death penalty, mandatory prison sentences and corporal punishment. For example, in Britain, before winning the 1979 general election the Conservative Party was reported to have been planning a referendum on the reintroduction of corporal punishment for young offenders. But in Britain, as in other liberal democracies, election promises to introduce tougher penal measures are not always fulfilled. Law and order issues