P39A Recommends – P39A Criminal Law Blog

Police Reform Through a Power Lens

Editor — Fri, 10 Mar 2023 16:42:03 +0000

Project 39A recommends Jocelyn Simonson’s article titled, ‘Police Reform Through a Power Lens’.

In recent years, the United States has seen widespread protests against the violence of the police force and multiple killings of unarmed African-American people. In reckoning with the history of slavery in the country and its continued impact on African-American communities; activists and scholars have grappled with how to repair the broken system and reform the police. How do we protect marginalized communities from the disparate harm of policing practices while still ensuring the safety of the public?

In ‘Police Reform Through a Power Lens’, Jocelyn Simonson (Professor, Brooklyn Law School) argues for incorporating what she terms a ‘power lens’ in police reform efforts. This approach involves considering the perspectives and insights of people most impacted by the police when designing and implementing reform. Adopting a power lens serves as reparation for historical harms, is in accordance with principles of anti-subordination and promotes a contestatory form of democracy. She argues for the recognition of lived experiences as a form of expertise, one that provides unique and valuable insights beyond that offered by the police and academic experts.

Simonson closely examines a wide array of historical and recent police reform proposals across academic literature and grassroots movements in the United States. She argues that dominant ideas of police reform adopt two approaches. The first approach focuses on instrumental outcomes, placing the primary focus on reducing the crime rate over any assessment of the engagement of the police with marginalized communities. The second approach works to legitimize the police, using efforts such as community engagement as a fig leaf that pretends to involve the community while avoiding any real reform of police practices.

Unlike this approach, the power lens is an attempt to bring the voices of persons who are directly impacted by police surveillance and violence to inform the imagination and functioning of the police force. She presents two approaches incorporating the power lens. The first is a form of ‘community policing’. This allows the local community to decide on police functioning such as its budget and priorities, with an emphasis on the effective power of decision-making that can affect police functioning and not simply suggesting inputs that are ultimately ignored. The second is a ‘people’s process’ that brings together people impacted by policing practices and the criminal justice system while designing reform. This means involving persons who have been arrested, or surveilled by the police or have families impacted by the criminal justice system to decide on the broader approach to policing and public safety. It also means allowing such communities to redefine the concept of public safety and even look beyond the police force if they believe it is important based on their own experiences.

Simonson argues that this approach is valuable for three reasons. Firstly, it serves as a form of reparations for the harm inflicted disproportionately on African-American communities by the police, which is a legacy of the historical role of the police force in controlling enslaved persons. While such an effort alone is not sufficient reparations, introducing a ‘bottom-up’ approach to power and decision-making represents one form of reparations for centuries of disenfranchisement. The exercise also constitutes a form of anti-subordination, promoting equality and serving to empower minorities to overcome their historical subjugation and exclusion from democratic processes. Finally, this approach represents a form of contestatory democracy, one that promotes the public challenging and rebelling against fundamental precepts or presumptions of the system. Allowing such contestation promotes a healthier democracy, one that encourages the exploration of ideas that can lead to transformational reform.

The author does acknowledge the limitations of the current imagination of the power lens. While grassroots movements often argue for a power lens approach within an abolitionist framework, she acknowledges that insights from this approach do not guarantee any such outcome. In fact, she notes that community policing could lead to greater surveillance if the community believes that such actions are necessary for their own safety. Furthermore, it is difficult to lay out any comprehensive definition of the community that should be involved in such efforts. While she broadly explains the constituents of the impacted group as ‘race-class subjugated communities’ or neighbourhoods in which the majority are poor Black, Latinx, or Indigenous people; she acknowledges that any effort to specifically define the community may end up excluding other classes.

Simonson argues that while there are a range of fundamental questions that remain – who should form the community, how do we ensure such processes are not co-opted by elite interests, how do we protect against worse outcomes – it represents a valuable insight to the police reform process. She emphasizes that it is only a ‘lens’. It does not represent an independent system for the evaluation and imagination of police reform but presents an important perspective that must be considered along with other approaches in devising police reform.

The article concludes with the importance of rethinking the concept of expertise in criminal justice reform. Historically discourse on such reform limits expertise to police personnel and independent academic experts, with reformers often calling for increased reliance on independent expertise. But she argues that people impacted by the system, such as the formerly incarcerated, offer unique and useful insights from their own experiences of the flawed system that the general public may not even imagine. Simonson follows a long line of scholarship on Critical Race Theory to emphasize the value of lived experiences in evaluating the system and imagining reform.

Additional reading recommendations:

Rachel López, ‘Participatory Law Scholarship’, Columbia Law Review, Vol. 123 (2023).
Mari J. Matsuda, ‘Looking to the Bottom: Critical Legal Studies and Reparations’, 22 Harv. C.R.C.L. L. Rev. (1987).
Susan Sturm & Haran Tae, ‘Leading with Conviction: The Transformative Role of Formerly Incarcerated Leaders in Reducing Mass Incarceration’ 15-27 Colum. Pub. Law Research Paper No. 14-547 (2017).
Cynthia Godsoe, ‘Participatory Defense: Humanizing the Accused and Ceding Control to the Client’, 69 Mercer L. Rev. 715 (2018).
Amna A. Akbar, Sameer M. Ashar, Jocelyn Simonson, ‘Movement Law’, 73 Stan. L. Rev. 821 (2021).

The New Jim Crow

Editor — Fri, 03 Feb 2023 16:59:23 +0000

Project 39A recommends Ava DuVernay’s documentary titled, ‘13th’ and Michelle Alexander’s book titled, ‘The New Jim Crow: Mass Incarceration in the Age of Colorblindness’.

What does it mean to support or ignore a criminal justice system that is violent and discriminatory at its very core? As a part of the ‘Black Lives Matter’ movement and in response to widespread violence against African-Americans, civil rights groups and the public in the United States have begun considering radical solutions such as defunding the police and abolishing prisons. While these suggestions have divided supporters of the movement, been mischaracterized and ridiculed; the proposals in fact are built on historical and sociological analysis of the American criminal justice system and its impact.

In light of the lack of understanding of these radical movements, Project 39A recommends the documentary ‘13th’ and the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander as introductions to the history and context of such proposals. While the analysis in both the film and the book may appear specific to the context of the United States, it offers lessons in understanding the history and impact of the criminal justice system as an institution. Reflections from these works can help us look beyond individual issues with the police or with sentencing into critiquing the criminal justice system as a whole.

13th

13th is a documentary directed by Ava DuVernay and released in 2016. It presents a reckoning of the racist nature and history of America’s criminal justice system based on the experiences and research of various racial justice scholars and activists. 13th offers a compelling account that challenges the conventional wisdom that the system disproportionately harms African-Africans, arguing instead that the system in its very design and imagination was created to target and oppress African-Americans.

The title of the documentary is based on the 13th Amendment to the United States Constitution that abolished slavery, arguing that the prison system in the United States is a continuation of historical slavery. The documentary highlights the insidious portrayal of African-Americans as “beasts”, constantly linked with criminality, as a tool to authorise violence by the state through a brutal system of mass incarceration. The documentary reveals the mass incarceration of African-Americans, disproportionate police surveillance of marginalised communities, subjecting African-Americans to harsh police violence as well as wrongful conviction of African-Americans through a flawed trial process that incentivises plea bargaining. Convictions under this flawed and discriminatory process prevent those affected from accessing a number of civil and constitutional rights – including the right to vote, access housing and employment. In this way, the prison system reproduces the conditions of social existence of enslaved people by similarly disqualifying declared criminals from exercising their basic rights.

The shocking scale and impact of mass incarceration on African-Americans renders doubtful any claim that it is the result of a sincere, but overzealous, law enforcement agency committed to public safety. 13th unravels the political and racial history of mass incarceration in the United States, arguing that the phenomenon is a response to the civil rights movement that dismantled racist policies that disadvantaged African-Americans in the United States. The film is a powerful commentary on the state’s use of political institutions and harsher laws to exercise power, assert control and instil a sense of fear against marginalised communities. In particular, the film highlights the manner in which the ‘war on drugs’ and the ‘prison-industrial complex’ were used to continue the effect of such discriminatory legislation, in impact if not in name. The film notes how terms such as ‘law and order’, popularised in the media with concerted political effort, began to simply mean the targeting of African-Americans. DuVernay argues that the system has successfully created a ‘criminal’ class, one which overwhelmingly comprises African-American, and reproduces the very conditions that the 13th Amendment sought to abolish and denies their basic human dignity through systematic oppression.

The New Jim Crow: Mass Incarceration in the Age of Colourblindness

One of the interviewees in DuVernay’s film was Michelle Alexander, who wrote on racist nature of the institution of America’s criminal justice system in The New Jim Crow. Alexander’s book focused on the political history of the modern criminal justice system, with particular emphasis on the ‘war on drugs’, to draw parallels between the lived experiences of African-Americans under slavery, ‘Jim Crow’ laws and modern day mass incarceration. ‘Jim Crow’ laws were introduced in Southern states, after the abolition of slavery, to segregate African Americans in public places and, particularly, in education in order to hinder economic and political progress by African-Americans.

Alexander explains how the ‘war on drugs’, which began under the Reagan administration in 1982, was a concerted effort between the government and industrialists to criminalise African-American communities and to use the language of ‘law and order’ to justify their oppressive tactics. Alexander argues that in response to the capitulations after the civil rights movement, the system began using sanitised language of ‘law and order’, as opposed to explicitly racist terminology. She further argues that using seemingly neutral language has far reaching, insidious effects, preventing civil liberties scholars and advocates themselves from recognising the criminal justice system as a regime designed to relegate African-Americans to a second class status.

Alexander highlights the need to differentiate the modern American criminal justice system from other social systems, such as employment, where racist biases are seeped into an otherwise workable institution. Instead, Alexander calls for characterising the criminal justice system as an institution whose primary purpose is oppression of African-Americans in society. To make this point, she explores the similarities in the oppressive experiences across multiple generations of one African-American family who all experienced the same absence of liberties and constitutional rights under various regimes, that is, slavery, Jim Crow and mass incarceration.

Conclusion

Although 13th and The New Jim Crow appear to be specific to issues in the United States, the debates documented in both works offer a lens to examine the criminal justice system as an institution through the holistic study of its history, politics and impact. This approach is relevant to the examination of any country’s criminal justice system. In particular, it is worth examining the Indian criminal justice system under a similar lens, considering the roots of the institution in the previous colonial regime and its disproportionate impact on Dalits, Bahujans, Adivasis and other marginalised groups. Both 13^th and The New Jim Crow raise larger philosophical and sociological questions on the purpose of the criminal justice system, which we must consider as it applies to our own system.

Additional recommendations:

‘The House I Live In’ (An Independent Lens film on PBS, 2013).
‘Philly D.A.’ (An Independent Lens Original Series on PBS, 2021).
Angela Davis, ‘Are Prisons Obsolete’ (Seven Stories Press, 2003).
Ruth Wilson Gilmore, ‘Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California’ (University of California Press, 2007).
Michel Foucault, ‘Discipline and Punish: The Birth of the Prison’ (Gallimard, 1995).

Affective Experience of Incarceration

Baljeet Kaur — Thu, 07 Jul 2022 15:58:00 +0000

Janani Umameshwar, ‘Suppression on top of Oppression: A Symbolic Interactionist Perspective on the Affective Experience of Incarceration’, The British Journal of Criminology, 2021

The law and the criminal justice system, we are told, is logical and dispassionate. There is no space in it for the emotions and vulnerabilities of its stakeholders. Consider the life of a ‘prisoner’; incarceration isolates them from everyday life and restricts their autonomy so severely as to be dehumanising. Coupled with the experience of being isolated from their loved ones, feelings of powerlessness, anger and humiliation are common. At the same time, popularly accepted gendered notions stigmatise the expression of emotions by incarcerated men (“men don’t cry”, “men don’t talk about their feelings” etc.). It is therefore not hard to imagine that the emotions of incarcerated men have received little academic attention as well.

‘Suppression on top of Oppression: A Symbolic Interactionist Perspective on the Affective Experience of Incarceration’, has been authored by Dr. Janani Umamaheshwar, Assistant Professor in the Department of Criminology, Law, and Society at George Mason University, whose research interests lie broadly in the area of the sociology of punishment and incarceration, and gender. In the article, Umamaheshwar presents findings from her interviews with 24 incarcerated men in a state-run prison in North-Eastern United States, on the complex interplay of emotions and identity that structures of incarceration generate. As the title suggests, Umamaheshwar builds on the theories of ‘symbolic interactionism’ and ‘sociology of emotions’, as well as the efforts in ‘narrative criminology’, to focus on how perception of social conventions and expectations shape emotion and identity work performed by incarcerated men.

The ‘pains of incarceration’ severely alter and erase the pre-incarceration identities of imprisoned men. Umamaheshwar notes that earlier research has largely considered the manner in which prisons shape the identities of their inmates but has not substantially focused on the emotional aspects of their lives; particularly, the role of emotions in identity formation. Her work is therefore most interested in the experiential dimensions of incarceration, i.e., how men ‘feel’ incarceration.

Umamaheswar begins her research by acknowledging that the authoritarian environment in prison and the lack of social support systems has the potential to drastically restrict the free expression of emotions and can cause emotional detachment. However, she proceeds to inquire into: a) how negative emotions generated by incarceration lead to isolation and marginalisation of such men, and b) how incarcerated men manage negative emotions by engaging in the construction of morality-based narratives and other similar identity shaping behaviours.

Through her fieldwork, she finds that incarceration produces strong emotions of sadness, shame, humiliation and anger. Incarcerated men cope with these uniquely difficult feelings by isolating themselves from their support systems, including family and friends. The author cites the example of one man who resists meeting his family to avoid the humiliation that his loved ones face during such visits. Another prisoner avoids visits from his family, which he calls “too depressing”, given his inability to stop thinking about them for many days later. The inability to perform the roles of ‘father’, ‘son’ or ‘husband’ (roles aligning with their pre-prison identities) causes immense shame and results in them internalising the feeling of being a ‘failure’. The manner in which incarcerated men cope with these complex emotions is what Umamaheshwar terms ‘emotion/identity work’ – the radical transformation of emotions such as shame, anger, humiliation into feelings of pride, gratitude, self worth. This involves weaving a series of alternate narratives and moralistic identities, separate from the ones that the experience and structures of incarceration engender in prisoners.

Umamaheshwar’s research shows that prisoners often cope with perceptions of failure by creating identities that compare themselves to other prisoners, who they deem ‘morally inferior’. The interviewed prisoners display emotions of heightened pride or gratitude as they speak of being “real men” or “men of respect”, better than the average joe in prison, who whiles away his time and accepts his doomed fate. Unfortunately, this identity work often leads to oscillating feelings of humiliation and pride – a troubling sense of cognitive dissonance.

Umamaheshwar poignantly concludes that the punitive and coercive structures of imprisonment are meant to fester negative emotions such as humiliation, sadness and anger among prisoners, especially by cutting off crucial social support resources such as the family and community. These negative emotions, in turn, perpetuate a deeper sense of marginalisation among incarcerated men. Umamaheshwar’s work is an important contribution to the existing psychological research that considers cognitive strategies deployed by stigmatised and marginalised groups. The negative experiences of incarceration have far-reaching consequences on familial and social ties of prisoners. In the Indian context too, the unending isolation and marginalisation that incarceration causes to prisoners and their families can only be ended by restoring dignity and ending the stigma around incarceration. A truly reformative criminal justice system must not turn a blind-eye to the negative emotions produced by incarceration and must focus on encouraging healthy bonds between prisoners and their loved ones.

Janani Umamheshwar’s other work may be found here.

Cinema and Criminal Justice

Baljeet Kaur — Thu, 21 Apr 2022 19:02:50 +0000

Project 39A recommends four Indian films – Court (2014), Visaranai (2015), Jai Bhim (2021) and Aakrosh (1980) – which center the experiences of the most marginalised members of society with the criminal justice system, and raise critical questions about the interaction between state power and structural inequality and its impact on justice delivery mechanisms.

These stories highlight the disproportionate impact of the violence of the system – in the form of custodial torture, fabricated evidence, false prosecutions, as well as its apathy and incomprehensibility – on individuals who have been subject to systemic discrimination due to their socio-cultural identity. These films reflect the visceral alienation experienced by such individuals as they navigate police investigations, communications with their lawyers, or courtroom proceedings. When the legal system, and its inherent inaccessibility, is viewed through this lens, one is confronted with questions about the space for agency of vulnerable individuals within the legal system; the tremendous responsibility on lawyers and judges, who are themselves human and imperfect; and the imagination of an inclusive and effective justice system.

Court (2014, Chaitanya Tamhane)

Court captures the engagement of the court eco-system with Narayan Kamble’s case, where folk singer and activist (Kamble) is accused of abetting a sanitation worker’s (Vasudev) suicide through his “provocative” song lyrics. The film allows a glimpse into the life of each stakeholder, within and outside the court. The coverage of the life of the judge, in particular, reveals his fallibility – his biases and superstitions. This offers a compelling contrast to the expectation of his role in the courtroom as an impartial dispenser of justice. Through a (fairly accurate) depiction of the manner in which evidence is recorded in court, the film highlights the disconnect between reality, witness testimonies and what is finally recorded as legal fact. The trauma of manual scavenging gets lost in legal translation, and Kamble’s steadfast conviction in his music gets interpreted as open defiance against the might of the state – threatening the certainty of his freedom. Court’s depiction of the routine functioning of the legal system dispels any glamourised notions about the administration of justice; and instead reveals the struggles and susceptibilities of the individuals who personify the state.

Visaranai (2015, Vetrimaaran)

Visaranai [The Interrogation] follows three Tamil migrant workers in Guntur, Andhra Pradesh. Their inability to understand Telugu creates several challenges for them, such as finding steady employment and navigating the alienation of being far from home. When they are wrongfully arrested for a theft they did not commit, Pandi and his companions struggle to understand the charges against them. With no legal representation or reliable support networks, the three find themselves at the mercy of the police system. The police, burdened by political pressures and expectations to quickly close cases, subject the detainees to torture for “confessions” and brutally exploit their vulnerability.

Though at times discomfiting to watch, Visaranai unravels the arbitrariness and dark extremes of state power, and the precarity of individuals confronted with it.

Jai Bhim (2021, TJ Ghanayel)

Jai Bhim is a cinematic representation of a 1993 case argued by Retd. Justice K. Chandru during his time as a practising advocate.

When Rajakannu, a member of the Irula tribe, is implicated in a false case and subsequently disappears from police custody, his distraught wife, Sengeni, finds hope for justice in peoples’ lawyer, Chandru. The Irulas (forest dwellers, traditionally engaged in snake catching), are a denotified tribe, whose members continue to bear the stigma of being branded as criminals by an oppressive colonial law. The persistent criminalisation of the group is exemplified by the impunity with which the police infringe their basic rights and routinely entrap them in false criminal cases – a tragedy which consumes Rajakannu and his relatives.

At its core, Jai Bhim, highlights the immense capacity of effective lawyering to represent marginalised voices, render challenge to police excesses, and realise the very essence of the law.

Aakrosh (1980, Govind Nihalani)

Aakrosh’s [Anger] protagonist, Lahanya, an adivasi accused of his wife’s murder, navigates the film in stunned silence. When Lahanya refuses to confide in his idealistic lawyer, Bhaskar Kulkarni, the latter decides to pursue the truth on his own. As the reality of the incident, and the complicity of the powerful actors of the justice system, unfolds, Lahanya’s silence becomes deafening to his young lawyer. Confronted with his client’s harsh circumstances and internal turmoil, Bhaskar’s faith in the justice system is shaken. The violent culmination of the film reveals the extent of Lahanya’s anguish and rage. For Lahanya, the systemic oppression of his community and family is deeply pervasive and immutable, making the very possibility of a just resolution through the legal system an illusion. Aakrosh compels us to interrogate the quality of justice that the law can afford in the face of structural inequality and a compromised system.

Reconciling Punishment and Forgiveness in Criminal Justice

Baljeet Kaur — Thu, 10 Feb 2022 09:36:15 +0000

Nicola Lacey & Hanna Pickard, ‘From the Consulting Room to the Courtroom? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm,’ Oxford Journal of Legal Studies, 2013

Nicola Lacey & Hanna Pickard, ‘To Blame or to Forgive?: Reconciling Punishment and Forgiveness in Criminal Justice,’ Oxford Journal of Legal Studies, 2015

What should we do when someone wrongs us? It is a question all of us must deal with at some point in our lives. It is also the question that sits at the core of the design of the criminal justice system: when someone commits a wrong against society, how should the society respond?

In ‘From the Consulting Room to the Courtroom? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm’, Nicola Lacey, (School Professor of Law, Gender and Social Policy at London School of Economics Law School) and Hanna Pickard (Bloomberg Distinguished Professor of Philosophy and Bioethics at Johns Hopkins University) articulate a different vision of the criminal justice system, one that is kinder and more compassionate towards those within its fold and that rejects the anger and hate that is currently imbued through the process.

Lacey and Pickard posit that there are lessons to be learned from the clinical approach in treating personality disorders. Therapeutic treatment in such cases involves having patients take responsibility for their actions, but within an environment of empathy and care geared towards their own improvement. Patients are presumed to have the capacity to significantly control their ‘maladaptive behaviour’, and so the focus is on motivating and supporting patients to choose to alter such behaviour. This process can also involve forms of accountability such as efforts to make patients understand the consequences of their behaviour and even face negative consequences during the treatment if they fail to modify problematic behaviour. But this somewhat punitive process is still undertaken with an attitude of concern, respect and compassion, as opposed to blame.

Lacey and Pickard argue that the court system can take inspiration from this approach to envision a more empathetic system – one that separates accountability from what they call ‘affective blame’, that is, the typically hostile and negative responses we have to criminal conduct. This does not mean the courtroom becomes the clinic. Both institutions have fundamentally different purposes, with the clinic focused on the improvement and care of the offender while the court system has to also protect public safety and the victim’s interests among various competing considerations. But they argue that the therapeutic process still offers lessons that can inspire a reimagination, one that fulfills the various goals of the sentencing process while also functioning as a more compassionate and empathetic system.

Through this, the authors challenge the widespread assumption that a rehabilitative approach necessarily means the offender cannot be held accountable: we can still hold someone responsible while also extending compassion towards them. To put it simply, Lacey and Pickard ask us to hate the ‘sin’ and not the ‘sinner’, to not focus on the hate we feel towards the offender and not let the process operate as an expression of such collective hate and anger. Offenders are equal members of our society, and as such, they are entitled to dignity and respect. The process of punishment ought to be imbued with such dignity and be geared towards reintegrating offenders as members of society. They also argue that, as a society, we may have a moral obligation to work for the reform and reintegration of offenders who are typically victims of social inequality and disadvantage prior to offending.

The authors build on this institutional reimagination in ‘To Blame or to Forgive?: Reconciling Punishment and Forgiveness in Criminal Justice’, to argue that the value of forgiveness ought to be the foundational principle of the criminal justice system. Their definition of forgiveness builds on the work of Lucy Allais. Forgiveness means wiping the slate clean – one can hold the offender responsible for the offence and even condemn the offence itself, but one also then lets go of the negative feelings towards the offender because of the act. However, their articulation of forgiveness differs from other accounts in one important aspect. For Lacey and Pickard, it need not only be the victim who forgives – that is not their burden to bear. Just as our present system is infused with institutionalised resentment and blame, it can offer institutionalised forgiveness.

The institutional forgiveness Lacey and Pickard imagine still requires the offender to be held responsible for their actions. They envision a process that requires the exploiter to understand the harm they have inflicted and to convince the forgiver that they will refrain from inflicting further harm, which any return to society must be conditional upon. Lacey and Pickard argue that such a system is more effective because it works towards building an intrinsic desire to change among offenders towards securing the benefits of a reintegration in society. Focus on vengeance on the other hand only leads to marginalisation of the offender and ultimately to vicious cycles of revenge and violence.

For forgiveness to work in such a radical manner, both parties must be genuinely committed to the process. Offenders must be willing to reflect and to refrain from committing further harm. But the system must also be prepared to genuinely forgive such willing offenders. While we can and ought to hold offenders responsible, we cannot use the idea of ‘earning forgiveness’ to smuggle in vengeance and condemnation. They argue the starting point should not be to focus on what offenders can do to earn our forgiveness, but instead asking what the criminal justice system can do to encourage offenders to participate in a reparative process.

What does all of this mean in practice? Abandoning affective blame and institutionalising forgiveness requires fundamentally reimagining the structures and practices of the system as a whole. But Lacey and Pickard also offer first steps towards such institutional reform. They argue that we should eliminate stigmatising harmful behaviour from the processes which are designed solely to degrade offenders, such as identifying prisoners only by their convict numbers. They also argue for a more balanced approach to sentencing, one that focuses on understanding the background and context of offenders, which will ultimately help temper the affective blame one instinctively feels in response to the offence.

Forgiveness requires wiping the slate clean after holding the person responsible. An important step is addressing the collateral consequences that follow offenders even after they have served their sentence, such as disenfranchisement or residency requirements which continue to stigmatise offenders despite already being held accountable for their actions. In the process of trial and sentencing, it means focusing on the offence and not attacking the character of the offender in dehumanising and negative ways – to avoid condemnatory behaviour that would undercut the reparative focus of the process. More radically, forgiveness in sentencing imagines involving the accused in the process of determining the punishment that will be imposed. Through such participation, they are invited to help in designing and therefore also accepting the consequences of their offending. Ultimately, the process must be geared towards reparation of the harm caused and reintegration of the offender into society.

Additional reading recommendations:

John Braithwaite, Restorative Justice and Responsive Regulation (Oxford University Press, 2002).
Shadd Maruna, ‘Shame, Shaming and Restorative Justice: A Critical Appraisal’ in Handbook of Restorative Justice (Taylor and Francis 2005).
Jeffrie Murphy, ‘Forgiveness, Reconciliation, and Responding to Evil: A Philosophical Overview’ in Punishment and the Moral Emotions: Essays in Law, Morality, and Religion (Oxford University Press 2012).
Martha Craven Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (Oxford University Press, 2016).
Martha Minow, When Should Law Forgive? (W. W. Norton & Company, 2019).

Reconciling Punishment and Forgiveness in Criminal Justice

Editor 2 — Thu, 10 Feb 2022 04:06:15 +0000

Nicola Lacey & Hanna Pickard, ‘To Blame or to Forgive?: Reconciling Punishment and Forgiveness in Criminal Justice,’ Oxford Journal of Legal Studies, 2015

Additional reading recommendations:

John Braithwaite, Restorative Justice and Responsive Regulation (Oxford University Press, 2002).
Shadd Maruna, ‘Shame, Shaming and Restorative Justice: A Critical Appraisal’ in Handbook of Restorative Justice (Taylor and Francis 2005).
Jeffrie Murphy, ‘Forgiveness, Reconciliation, and Responding to Evil: A Philosophical Overview’ in Punishment and the Moral Emotions: Essays in Law, Morality, and Religion (Oxford University Press 2012).
Martha Craven Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (Oxford University Press, 2016).
Martha Minow, When Should Law Forgive? (W. W. Norton & Company, 2019).

Freewill, Determinism and Criminal Justice

Baljeet Kaur — Fri, 29 Oct 2021 12:52:55 +0000

Alan Norrie, ‘Freewill, Determinism and Criminal Justice,’ Legal Studies, 1983

One of the most extensively debated topics in philosophy and science emerges from the tussle between free will and determinism. This debate has been the subject of numerous films and has added complexity to the storytelling. Steven Spielberg’s dystopian film, Minority Report, and films from the Matrix franchise artfully weave components of free will and determinism into their plots and depict the friction that exists between them. The free will philosophy is based on the presupposition that individuals are autonomous beings whose decisions and actions are products of their free choice. This is contrary to the view taken by determinists, that is, scientific laws influence an individual’s behaviour and therefore, an individual’s decision can never be the outcome of pure free will.

Scholars have engaged with the free will versus determinism debate since centuries and are nowhere near putting it to rest. Fascinating and thought provoking questions emerge from this debate. This debate has a bearing on multiple disciplines including criminal law and justice.

The article ‘Freewill, determinism and criminal justice’ has been authored by Professor Alan Norrie, Professor of Law at School of Law, University of Warwick. He is a noted legal theorist with significant contributions to scholarship in critical legal studies. In this piece, Professor Norrie examines the free will versus determinism debate through the lens of criminal justice. Free will and determinism are both pivotal to criminal justice, with the former providing the rationale for criminal responsibility and the latter providing justifications for certain excusing conditions for criminal responsibility. Typically, individuals are punished for actions undertaken as a result of free will. Actions undertaken under the influence of determinist factors usually entail a reduced form of criminal responsibility. The consideration of mitigating factors such as mental illness, social circumstances, etc. at the sentencing stage of a case is a classic example of consideration of determinist factors.

In his article, Norrie examines two defences for the legal form, which he defines as ‘the law’s insistence on the freedom of the will as the basis for doing criminal justice.’ The first defence is H.L.A. Hart’s claim that free will and determinism are compatible. The other is Anthony Kenny’s claim- that determinism as a hypothesis is incoherent and therefore, poses no threat to free will. Both Hart and Kenny allude to determinism being a hypothetical doctrine and this seems to irk Norrie. Norrie defends the legitimacy of determinism. He argues that determinism is a coherent doctrine and it cannot coexist with free will. He explains that this validity of determinism as a hypothesis leaves criminal law susceptible to criticism and reduces the idea of criminal justice to a mere illusion. If a person’s actions are determined, they cannot be responsible for those actions. Therefore, punishing them for those actions would be unjust.

Norrie scrutinises Professor H.L.A. Hart’s arguments in Legal Responsibility and Excuses. Hart suggests that freedom of choice remains the basis for responsibility even if determinism is assumed to be true, save circumstances involving overt coercion. Norrie identifies the paradox and incoherence in Hart’s arguments by contextualising them in duress. Unlike Hart, he believes that the principle behind considering duress as an excuse is that an individual’s “choices do not remain choices.” Duress is an excuse for an activity done by a person at gunpoint simply because the ‘choice’ so made by the person at gunpoint would not really be a choice.

Kenny roots his argument in psychological determinism, which considers the behaviour of an individual to be determined by their wants or mental state, which in turn is considered to be determined by social causes. He argues that psychological determinism is incoherent because the want of an individual cannot be separately identified from the physical event that it manifests in. Norrie deftly attacks Kenny’s argument. While he acknowledges that an individual’s want cannot always be separately identified from the action, he argues that they can be ‘analytically separated’ in order to explain an individual’s action. For instance, the act of writing an article may or may not involve a person deliberating over what they want to write; but for the purposes of explaining the act of writing, the mental element of wanting to write and the physical act of writing can be distinguished. Norrie further argues that scope of enquiry should not be to determine if wants influence actions, but rather a more preliminary assessment of whether wants are themselves determined.

Norrie discusses the implications of determinism on criminal justice. He opines that while distinctions of kind may be drawn between duress and other determining factors such as economic, political and social insecurity and police harassment, no distinction can be drawn in principle. He argues that the boundaries of determining factors need not be restricted to threats, but should be expanded to include temptations as well as temptations can also motivate individuals to break the law. Finally, Norrie asserts that the legal form does not meet the requirements of individual justice, that is, intentions of individuals should not be separated from their motives. He contends that lawyers operate within the model of abstract rationality, i,e., reasons that they attribute to acts of individuals are divorced from their social and individual context. In doing so, lawyers consider only the intentions behind actions and not the motivations. This ignorance of an act’s motive results in the act being decontextualised or being ‘abstracted’ from its social and other contexts. Norrie argues that a law affixing criminal responsibility should not ignore motives as motives provide the link between intended actions and their causes. Individual justice requires that the individual’s action be contextualised. Thus, the legal form fails in meeting the requirements of justice to individuals and renders the idea of justice merely illusory.

Additional reading recommendations:

Michelle Cotton, A Foolish Consistency: Keeping Determinism out of the Criminal Law, Boston University Public Interest Law Journal, 2005-2006
Lawrence Newman, Duress, Free Will and the Criminal Law, Southern California Law Review, 1957
Matthew Jones, Overcoming the myth of free will in criminal law: The true impact of the genetic revolution, Duke Law Journal, 2002
Stephen Schafer, The Problem of Free Will in Criminology, Journal of Criminal Law and Criminology, 1977

Torture in dreamland: disposing of the ticking bomb

Baljeet Kaur — Fri, 23 Jul 2021 05:39:07 +0000

Henry Shue, ‘Torture in Dreamland: Disposing of the Ticking Bomb‘, Case Western Reserve Journal of International Law, 2006

The most common debate on torture perhaps pertains to its use in exceptional circumstances. Circumstances where torture is used for the “greater good”. TV series such as 24 convincingly portray the use of torture to help avert terrorist attacks and save the lives of many innocent people. Justification of use of torture in extreme circumstances is not restricted to popular culture alone but has also found its way to academic debates. Arguments advanced in support of torture in exceptional circumstances often make use of the ‘ticking bomb’ scenario. This hypothesis postulates that torture may be selectively utilised to interrogate a terrorist where they have set off a ticking bomb that can kill many innocent people. The use of torture to extract information from the terrorist is the only way to diffuse the bomb and avert the catastrophe. This scenario inevitably brings to mind the image of an ‘evil terrorist’ being subject to torture by a good-hearted investigating officer who is only resorting to this to extract information from the terrorist and save lives of people.

Scenarios such as the ticking bomb lead to questions such as- should the law carve out exceptional circumstances where torture is justified? Should constitutional democracies judicially sanction the use of torture in extreme cases? After all, proponents of selective use of torture would have us believe that lives of millions are at stake and national security must be protected at all costs. The argument for selective use of torture in extreme circumstances seems convincing to even those who otherwise oppose torture. However, Professor Henry Shue is unconvinced of the merits of this argument and vehemently opposes it in his writing.

The article ‘Torture in Dreamland: Disposing of the Ticking Bomb (2006)’ has been authored by Professor Henry Shue, Professor Emeritus of Politics and International Relations at the Merton College, University of Oxford. He demonstrates that the use of torture cannot be sustained or allowed in any situation. Professor Shue specifically discusses the ticking bomb scenario and opines that the use of torture in moderation can only be imagined in a ‘dreamland.’

By using the concepts of idealization and abstraction, he points out fallacies in the ticking bomb hypothesis and argues that such hypotheses are largely unrealistic. In writing this piece, Professor Shue rebuts propositions put forth by Professor Oren Gross in The Prohibition on Torture and the Limits of the Law, which examines the possiblity of the use of torture in certain extreme situations.

Shue argues that such hypothetical cases of catastrophe are misleading as they appear remarkably better than reality. To justify this, he relies on two ideological processes derived from Onora O’ Neill’s Ethical Reasoning and Ideological Pluralism– idealization and abstraction. Idealization is the addition of false predicates or features to make the argument/ example better, whereas abstraction entails selectively omitting negative features from an example to make it more appealing. Shue describes idealization as adding “sparkle” and abstraction as “removing dirt”.

In his piece, Shue argues that the ticking bomb hypothesis’ adoption of idealization hinges on three assumptions. First, that the person in the custody of the interrogators is a terrorist- not a suspected terrorist. The hypothesis also assumes that the captured terrorist gives accurate information in a timely manner that is useful in successfully averting the catastrophe. The third assumption is that such a case is rare and isolated. Idealization does not accommodate other possibilities such as the person in custody being a mere suspect, inaccurate information being elicited or information not being elicited in a timely manner and therefore, is fallacious. In his work, Shue articulately dismantles the basic premise of a seemingly convincing ticking bomb scenario.

Shue refers to his 1987 piece titled Torture to allude to his dicta that “artificial cases [such as the ticking bomb hypothesis] make bad ethics” and then refers to Gross’ piece which argues that such cases are not artificial, but real, though rare. However, Shue believes that it is this rarity of such situations which would lead to torturers being incompetent. In his opinion, the problem of the ticking bomb situation is an ‘abstraction’, that is, it is divorced from reality. Shue expertly points out the paradox in the ticking bomb argument- if this scenario is rare then the torturer will not be competent. To be able to successfully extract information, the torturer must be skilled. This skill will not be developed “overnight” and requires systemic support for torture. Further, allowing exceptions to torture will pave the way for the State and the machinery at its disposal to expand the ambit of exceptions. In this way, Shue concludes that “torture is an institution.”

Thus, Shue concludes that envisaging the selective use of torture in hypothetical cases is an ‘impractical abstraction’ or ‘torture in dreamland.’ His arguments dismantle the attractiveness of the ticking bomb scenario which restricts torture to selective situations- where torture is inflicted for the greater good of society. The piece articulately emphasises on the impossibility of the use of torture in moderation leading the reader to realise that the ‘ticking bomb scenario’ or ‘using torture only select situations to save the lives of millions’ is too simplistic a scenario to be true. There are always institutional realities which will have to be taken into account. The only moderation that Shue proposes is that torture should never be committed. The catastrophe that must be averted is not the ticking bomb, but the commission of torture.

We also recommend:

David Sussman, What’s Wrong with Torture?, Philosophy and Public Affairs, 2005
Mirko Bagaric and Julie Clarke, Not Enough Official Torture in the World? The Circumstances in Which Torture Is Morally Justifiable, University of San Francisco Law Review, 2005
Jinee Lokaneeta, Defining an Absence: Torture ‘Debate’ in India, Economic and Political Weekly, 2014