Christopher Slobogin
- Published in print:
- 2006
- Published Online:
- April 2010
- ISBN:
- 9780195189957
- eISBN:
- 9780199893980
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195189957.001.0001
- Subject:
- Psychology, Forensic Psychology
Culpability and dangerousness are the two central issues raised by any sensible societal attempt to deal with antisocial behavior. For the past century, mental health professionals have been heavily ...
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Culpability and dangerousness are the two central issues raised by any sensible societal attempt to deal with antisocial behavior. For the past century, mental health professionals have been heavily involved in helping the law address these issues. But critics deride clinical testimony about culpability as disguised storytelling and tar expert predictions by comparing them unfavorably to coin flipping. They have been aided in these efforts by a series of decisions from the U.S. Supreme Court that appear to impose a relatively high threshold for expert testimony, one that requires that the testimony’s underlying assumptions be verified as reliable through scientific or other testing. Although many courts have yet to consider the implications of those decisions for behavioral science testimony, an increasing number of lower court decisions suggest that a more restrictive evidentiary regime is in the offing. This book is an effort to sort out whether that development would be a good thing. How we should go about proving culpability and dangerousness depends on a number of variables, including the governing substantive law, our ability to answer the questions that this law generates, the extent to which judges and juries can arrive at sensible conclusions without the help of experts, and whether the testimony proffered is from the government or from the person whose liberty is at stake. The book concludes that culpability and dangerousness are socially constructed concepts that probably cannot, and in any event should not, be determined solely through the scientific method.Less
Culpability and dangerousness are the two central issues raised by any sensible societal attempt to deal with antisocial behavior. For the past century, mental health professionals have been heavily involved in helping the law address these issues. But critics deride clinical testimony about culpability as disguised storytelling and tar expert predictions by comparing them unfavorably to coin flipping. They have been aided in these efforts by a series of decisions from the U.S. Supreme Court that appear to impose a relatively high threshold for expert testimony, one that requires that the testimony’s underlying assumptions be verified as reliable through scientific or other testing. Although many courts have yet to consider the implications of those decisions for behavioral science testimony, an increasing number of lower court decisions suggest that a more restrictive evidentiary regime is in the offing. This book is an effort to sort out whether that development would be a good thing. How we should go about proving culpability and dangerousness depends on a number of variables, including the governing substantive law, our ability to answer the questions that this law generates, the extent to which judges and juries can arrive at sensible conclusions without the help of experts, and whether the testimony proffered is from the government or from the person whose liberty is at stake. The book concludes that culpability and dangerousness are socially constructed concepts that probably cannot, and in any event should not, be determined solely through the scientific method.
Gideon Yaffe
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199590667
- eISBN:
- 9780191595530
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199590667.003.0010
- Subject:
- Philosophy, Moral Philosophy, General
Many jurisdictions allow a defendant to avoid criminal liability for an “inherently impossible” attempt, such as an attempt to commit murder by incantation. What distinguishes the “inherently ...
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Many jurisdictions allow a defendant to avoid criminal liability for an “inherently impossible” attempt, such as an attempt to commit murder by incantation. What distinguishes the “inherently impossible” attempts from those of defendants who merely act on hopeless plans? It is argued that the difference is not the dangerousness of either the attempt or the actor: the attempts are equally unlikely to succeed, and often the more dangerous actor is the one who engages in the “inherently impossible” attempt. Instead, it is suggested that in incantation cases, and cases like them, we lack evidence that the defendant would take advantage of genuine opportunities to commit the crime: for all we know he would not drink even if led to water. Thus, given the view of guidance offered in Chapter 3, we lack sufficient evidence in such cases that the defendant is trying to commit the crime.Less
Many jurisdictions allow a defendant to avoid criminal liability for an “inherently impossible” attempt, such as an attempt to commit murder by incantation. What distinguishes the “inherently impossible” attempts from those of defendants who merely act on hopeless plans? It is argued that the difference is not the dangerousness of either the attempt or the actor: the attempts are equally unlikely to succeed, and often the more dangerous actor is the one who engages in the “inherently impossible” attempt. Instead, it is suggested that in incantation cases, and cases like them, we lack evidence that the defendant would take advantage of genuine opportunities to commit the crime: for all we know he would not drink even if led to water. Thus, given the view of guidance offered in Chapter 3, we lack sufficient evidence in such cases that the defendant is trying to commit the crime.
William J. Curran
- Published in print:
- 2013
- Published Online:
- May 2014
- ISBN:
- 9780262019682
- eISBN:
- 9780262317245
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262019682.003.0016
- Subject:
- Biology, Bioethics
The author provides a contemporaneous and critical perspective of Tarasoff vs. Regents of the University of California and articulates concerns about the so-called ‘duty to warn’.
The author provides a contemporaneous and critical perspective of Tarasoff vs. Regents of the University of California and articulates concerns about the so-called ‘duty to warn’.
Christopher Slobogin
- Published in print:
- 2006
- Published Online:
- April 2010
- ISBN:
- 9780195189957
- eISBN:
- 9780199893980
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195189957.003.0006
- Subject:
- Psychology, Forensic Psychology
This chapter begins by describing the current state of prediction science, which is improving but is still almost as likely to produce inaccurate judgments as accurate ones. It also makes the crucial ...
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This chapter begins by describing the current state of prediction science, which is improving but is still almost as likely to produce inaccurate judgments as accurate ones. It also makes the crucial distinction between clinical prediction testimony and prediction testimony based on empirically derived probability estimates (which includes not only actuarial prediction testimony but might also encompass testimony based on what has come to be called “structured professional judgment”). The chapter then canvasses judicial decisions concerning the admissibility of prediction testimony, decisions that, despite the high error rates associated with predictions, are even more welcoming than the decisions dealing with expert opinions about culpability. Finally, it presents an evidentiary analysis of prediction testimony with an assessment of its materiality, a concept that raises particularly interesting issues in connection with prediction testimony based on group data and demographic information.Less
This chapter begins by describing the current state of prediction science, which is improving but is still almost as likely to produce inaccurate judgments as accurate ones. It also makes the crucial distinction between clinical prediction testimony and prediction testimony based on empirically derived probability estimates (which includes not only actuarial prediction testimony but might also encompass testimony based on what has come to be called “structured professional judgment”). The chapter then canvasses judicial decisions concerning the admissibility of prediction testimony, decisions that, despite the high error rates associated with predictions, are even more welcoming than the decisions dealing with expert opinions about culpability. Finally, it presents an evidentiary analysis of prediction testimony with an assessment of its materiality, a concept that raises particularly interesting issues in connection with prediction testimony based on group data and demographic information.
David DeMatteo, Daniel C. Murrie, Natalie M. Anumba, and Michael E. Keesler
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195385809
- eISBN:
- 9780199895311
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195385809.003.0027
- Subject:
- Psychology, Forensic Psychology
The United States Supreme Court has consistently conveyed that the death penalty must be an individualized determination, and many states have concluded that a defendant’s potential for future ...
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The United States Supreme Court has consistently conveyed that the death penalty must be an individualized determination, and many states have concluded that a defendant’s potential for future violence is an important consideration when assigning a death sentence. Therefore, courts have often turned to forensic mental health professionals for assessment of violence risk, or “future dangerousness,” at capital sentencing. However, there is much room for misinformation and poor practice in risk assessments at capital sentencing. So this chapter details the data crucial to violence risk assessments at capital sentencing—particularly base rates of violence in prisons and empirically-supported risk factors for prison violence—and provides practical guidance on using those data to perform a scientifically sound violence risk assessment at capital sentencing.Less
The United States Supreme Court has consistently conveyed that the death penalty must be an individualized determination, and many states have concluded that a defendant’s potential for future violence is an important consideration when assigning a death sentence. Therefore, courts have often turned to forensic mental health professionals for assessment of violence risk, or “future dangerousness,” at capital sentencing. However, there is much room for misinformation and poor practice in risk assessments at capital sentencing. So this chapter details the data crucial to violence risk assessments at capital sentencing—particularly base rates of violence in prisons and empirically-supported risk factors for prison violence—and provides practical guidance on using those data to perform a scientifically sound violence risk assessment at capital sentencing.
Peter Ramsay
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199581061
- eISBN:
- 9780191741005
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581061.003.0003
- Subject:
- Law, Criminal Law and Criminology
This chapter provides detailed analysis of the case law on the criminal offence of breach of an Anti-Social Behaviour Order (ASBO). It demonstrates first, that the offence converts the conduct ...
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This chapter provides detailed analysis of the case law on the criminal offence of breach of an Anti-Social Behaviour Order (ASBO). It demonstrates first, that the offence converts the conduct manifesting the unreassuring disposition that grounds liability to an ASBO from a threat to be controlled by a court order into a public wrong to be punished; and, second, that the penal wrong that the offence defines is, therefore, a wrong of dangerousness. This analysis is deployed to critique the theory that breach of ASBO is a criminal offence that serves to composite many minor offences for the purposes of punishment.Less
This chapter provides detailed analysis of the case law on the criminal offence of breach of an Anti-Social Behaviour Order (ASBO). It demonstrates first, that the offence converts the conduct manifesting the unreassuring disposition that grounds liability to an ASBO from a threat to be controlled by a court order into a public wrong to be punished; and, second, that the penal wrong that the offence defines is, therefore, a wrong of dangerousness. This analysis is deployed to critique the theory that breach of ASBO is a criminal offence that serves to composite many minor offences for the purposes of punishment.
Mark Kelman
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199755608
- eISBN:
- 9780199895236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199755608.003.0006
- Subject:
- Law, Philosophy of Law
Because fast and frugal heuristics theorists believe that people make all decisions, including decisions about whether to comply with legal regulations, by looking to a small number of ...
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Because fast and frugal heuristics theorists believe that people make all decisions, including decisions about whether to comply with legal regulations, by looking to a small number of lexically-processed decision-relevant cues, they argue that we will not manipulate crime rates as well by tinkering with expected punishments as we will by, for instance, engraining habits or conforming law to pre-existing social norms or altering the capacity of putative violators to engage in unwanted conduct. Heuristics and biases theorists believe that would-be criminals may care about the expected value of crimes they are considering committing, but that they often misestimate the probability of being sanctioned and evaluate sanctions in ways that are highly contextually sensitive. The chances of punishment may often be underestimated, and both the experienced and remembered pain of the punishment that criminals actually suffer may be counter-intuitively low. Incapacitationists should note that F&F scholars are wary of using multi-cue regression measures in predicting future dangerousness, and that H&B work should lead us to worry that we will systematically overestimate the dangerousness of criminals.Less
Because fast and frugal heuristics theorists believe that people make all decisions, including decisions about whether to comply with legal regulations, by looking to a small number of lexically-processed decision-relevant cues, they argue that we will not manipulate crime rates as well by tinkering with expected punishments as we will by, for instance, engraining habits or conforming law to pre-existing social norms or altering the capacity of putative violators to engage in unwanted conduct. Heuristics and biases theorists believe that would-be criminals may care about the expected value of crimes they are considering committing, but that they often misestimate the probability of being sanctioned and evaluate sanctions in ways that are highly contextually sensitive. The chances of punishment may often be underestimated, and both the experienced and remembered pain of the punishment that criminals actually suffer may be counter-intuitively low. Incapacitationists should note that F&F scholars are wary of using multi-cue regression measures in predicting future dangerousness, and that H&B work should lead us to worry that we will systematically overestimate the dangerousness of criminals.
Henrique Carvalho
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198737858
- eISBN:
- 9780191801501
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198737858.001.0001
- Subject:
- Law, Criminal Law and Criminology, Constitutional and Administrative Law
This book presents a theoretical examination of the rise and expansion of preventive criminal offences that has gained momentum in Anglo-American criminal justice since the late twentieth century. It ...
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This book presents a theoretical examination of the rise and expansion of preventive criminal offences that has gained momentum in Anglo-American criminal justice since the late twentieth century. It shows how recent transformations in criminal law and justice are intrinsically related to and embedded in the way liberal society and liberal law have been imagined, developed, and conditioned by their social, political, and historical contexts. The book starts by identifying a tension, within contemporary criminal law, between the importance given to the expression of individual autonomy and responsibility, and the perceived need for prevention as a condition for the security of autonomy and the promotion of welfare. The book then traces this tension back to an intrinsic ambivalence within the modern conception of individual liberty, which is both repressed and preserved by liberal conceptions of responsibility and punishment. It finds that it is this tension that ultimately grounds the rise of preventive criminal offences in recent times. The Preventive Turn in Criminal Law engages with the main contemporary literature on criminal law, prevention, risk, security, and criminalization, by deploying a theoretical perspective from both classical and contemporary works of social and political theory, including the works of Hobbes, Locke, Hegel, and Bentham. It does so in order to reveal that the pervasiveness of prevention in twenty-first century criminal law not only represents the consequence of new and unprecedented features of contemporary politics and society, but also embeds long-established features of the liberal legal and political tradition.Less
This book presents a theoretical examination of the rise and expansion of preventive criminal offences that has gained momentum in Anglo-American criminal justice since the late twentieth century. It shows how recent transformations in criminal law and justice are intrinsically related to and embedded in the way liberal society and liberal law have been imagined, developed, and conditioned by their social, political, and historical contexts. The book starts by identifying a tension, within contemporary criminal law, between the importance given to the expression of individual autonomy and responsibility, and the perceived need for prevention as a condition for the security of autonomy and the promotion of welfare. The book then traces this tension back to an intrinsic ambivalence within the modern conception of individual liberty, which is both repressed and preserved by liberal conceptions of responsibility and punishment. It finds that it is this tension that ultimately grounds the rise of preventive criminal offences in recent times. The Preventive Turn in Criminal Law engages with the main contemporary literature on criminal law, prevention, risk, security, and criminalization, by deploying a theoretical perspective from both classical and contemporary works of social and political theory, including the works of Hobbes, Locke, Hegel, and Bentham. It does so in order to reveal that the pervasiveness of prevention in twenty-first century criminal law not only represents the consequence of new and unprecedented features of contemporary politics and society, but also embeds long-established features of the liberal legal and political tradition.
Gwyneth Boswell
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9781847420008
- eISBN:
- 9781447304364
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781847420008.003.0004
- Subject:
- Social Work, Children and Families
In recent years, there have been political talks on the need to rebalance the criminal justice system in favour of the victims of crime. This ethos was reflected in the White Paper Justice for all ...
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In recent years, there have been political talks on the need to rebalance the criminal justice system in favour of the victims of crime. This ethos was reflected in the White Paper Justice for all and in the 2003 Criminal Justice Act which introduced new, lengthy custodial sentences for the express purpose of public protection. These new sentences that extend the custodial sentences can be applied to both adults and juveniles. While the desirability of the protection of potential victims from serious harm is not a matter of debate, the contextual assumption that harsher sentences on offenders will bring greater benefits for the victims and the wider community posits a big question. This chapter addresses the doubts and questions attached to the assumed effectiveness of harsher and tougher sentences in safeguarding the needs of the victims and the community. In doing so, the chapter first examines the characteristics young victims; second, it investigates the characteristics of the young people who offend violently; third, it examines the link and connection between young victims and young offenders; and finally, it examines the implications for balancing the protection of victims and potential victims with the proper and appropriate means of reducing ‘dangerousness’ of young offenders and perpetrators.Less
In recent years, there have been political talks on the need to rebalance the criminal justice system in favour of the victims of crime. This ethos was reflected in the White Paper Justice for all and in the 2003 Criminal Justice Act which introduced new, lengthy custodial sentences for the express purpose of public protection. These new sentences that extend the custodial sentences can be applied to both adults and juveniles. While the desirability of the protection of potential victims from serious harm is not a matter of debate, the contextual assumption that harsher sentences on offenders will bring greater benefits for the victims and the wider community posits a big question. This chapter addresses the doubts and questions attached to the assumed effectiveness of harsher and tougher sentences in safeguarding the needs of the victims and the community. In doing so, the chapter first examines the characteristics young victims; second, it investigates the characteristics of the young people who offend violently; third, it examines the link and connection between young victims and young offenders; and finally, it examines the implications for balancing the protection of victims and potential victims with the proper and appropriate means of reducing ‘dangerousness’ of young offenders and perpetrators.
Christopher Slobogin
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199844180
- eISBN:
- 9780199369607
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199844180.003.0005
- Subject:
- Psychology, Cognitive Neuroscience, Forensic Psychology
This chapter opens with a hypothetical legal scenario posed at a law and genetics conference at the University of Maryland to consider the following questions. (1) May dangerousness form the basis ...
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This chapter opens with a hypothetical legal scenario posed at a law and genetics conference at the University of Maryland to consider the following questions. (1) May dangerousness form the basis for a criminal sentence? If so, (2) may assessments of risk rely on genetic information? If so, (3) may the state compel genetic information from a criminal offender? Although a good case can be made for avoiding “bioprediction” in the criminal process, this chapter concludes, albeit tentatively, that all three questions should be answered in the affirmative, at least under current law in the United States.Less
This chapter opens with a hypothetical legal scenario posed at a law and genetics conference at the University of Maryland to consider the following questions. (1) May dangerousness form the basis for a criminal sentence? If so, (2) may assessments of risk rely on genetic information? If so, (3) may the state compel genetic information from a criminal offender? Although a good case can be made for avoiding “bioprediction” in the criminal process, this chapter concludes, albeit tentatively, that all three questions should be answered in the affirmative, at least under current law in the United States.
Susie Scott
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780262027915
- eISBN:
- 9780262320382
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262027915.003.0013
- Subject:
- Philosophy, Philosophy of Mind
The chapter challenges the legal notion of dangerous and severe personality disorder from a sociological point of view. The author also argues for appreciating evaluative aspects of conceptual issues ...
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The chapter challenges the legal notion of dangerous and severe personality disorder from a sociological point of view. The author also argues for appreciating evaluative aspects of conceptual issues in psychiatry, in addition to the scientific perspective. Findings from a study in which the author conducted semi-structured interviews with mental health professionals who work in forensic settings are presented. Different values held by the respondents are grouped into six different models of sociopathy or psychopathic disorder. It is shown how different values underlie different views on perceived dangerousness and psychopathy.Less
The chapter challenges the legal notion of dangerous and severe personality disorder from a sociological point of view. The author also argues for appreciating evaluative aspects of conceptual issues in psychiatry, in addition to the scientific perspective. Findings from a study in which the author conducted semi-structured interviews with mental health professionals who work in forensic settings are presented. Different values held by the respondents are grouped into six different models of sociopathy or psychopathic disorder. It is shown how different values underlie different views on perceived dangerousness and psychopathy.
Bernard E. Harcourt
- Published in print:
- 2010
- Published Online:
- March 2016
- ISBN:
- 9780814776155
- eISBN:
- 9780814777480
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814776155.003.0022
- Subject:
- Sociology, Law, Crime and Deviance
This concluding chapter argues that the common actuarial tools used by researchers in predicting future dangerousness/violations are counterproductive. Throughout their use of strategies such as ...
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This concluding chapter argues that the common actuarial tools used by researchers in predicting future dangerousness/violations are counterproductive. Throughout their use of strategies such as racial profiling, the researchers themselves produce racial distortion in the prison system. The findings unfortunately diverge from effective crime prevention philosophies, and bias the public's conception of fair and just punishment. The primary means through which racial distortion emanates, the chapter explains, is when a profiled group is less elastic or less responsive to policing. The chapter calls for an embrace of randomization by making justice determinations independent (blind) to predictions of future dangerousness. This orientation simply means that criminal justice should get out of the business of making decisions based on (highly imperfect, and counterproductive) predictions of future dangerousness, and instead (for example) randomly sample from among suspects where there is probable cause.Less
This concluding chapter argues that the common actuarial tools used by researchers in predicting future dangerousness/violations are counterproductive. Throughout their use of strategies such as racial profiling, the researchers themselves produce racial distortion in the prison system. The findings unfortunately diverge from effective crime prevention philosophies, and bias the public's conception of fair and just punishment. The primary means through which racial distortion emanates, the chapter explains, is when a profiled group is less elastic or less responsive to policing. The chapter calls for an embrace of randomization by making justice determinations independent (blind) to predictions of future dangerousness. This orientation simply means that criminal justice should get out of the business of making decisions based on (highly imperfect, and counterproductive) predictions of future dangerousness, and instead (for example) randomly sample from among suspects where there is probable cause.
Verónica Godoy-Cervera, Paulino Dzib, Isaac Aguilar Ortega, Daniella K. Villalba, and Jay P. Singh
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199386291
- eISBN:
- 9780199386314
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199386291.003.0017
- Subject:
- Psychology, Forensic Psychology
The Mexican criminal justice and mental health systems are described, with a focus on how violence risk assessment methods have been integrated into each. Legal statutes relevant to the prediction of ...
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The Mexican criminal justice and mental health systems are described, with a focus on how violence risk assessment methods have been integrated into each. Legal statutes relevant to the prediction of dangerousness are discussed, and seminal research studies on risk assessment tools are summarized. The Mexican findings of the International Risk Survey are used to describe the current state of the art of violence risk assessment, along with directions for future research. Finally, the importance of establishing a forensic mental health agenda, including the publication of mental health care guidelines for prisoners, is emphasized. To meet this goal, a shift in the conceptualization of mental illness may be needed such that it is no longer viewed as a purely biological phenomenon under the purview of psychiatrists, but rather a biopsychosocial phenomenon in which psychologists can play an influential role.Less
The Mexican criminal justice and mental health systems are described, with a focus on how violence risk assessment methods have been integrated into each. Legal statutes relevant to the prediction of dangerousness are discussed, and seminal research studies on risk assessment tools are summarized. The Mexican findings of the International Risk Survey are used to describe the current state of the art of violence risk assessment, along with directions for future research. Finally, the importance of establishing a forensic mental health agenda, including the publication of mental health care guidelines for prisoners, is emphasized. To meet this goal, a shift in the conceptualization of mental illness may be needed such that it is no longer viewed as a purely biological phenomenon under the purview of psychiatrists, but rather a biopsychosocial phenomenon in which psychologists can play an influential role.
Bill Hebenton and Toby Seddon
- Published in print:
- 2016
- Published Online:
- October 2016
- ISBN:
- 9780198723301
- eISBN:
- 9780191789700
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198723301.003.0007
- Subject:
- Law, Criminal Law and Criminology, Legal Profession and Ethics
This chapter builds on previous work by the authors that characterized and analysed the significance of radical precaution in the processes of securing ‘protection’ for citizens against dangerous ...
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This chapter builds on previous work by the authors that characterized and analysed the significance of radical precaution in the processes of securing ‘protection’ for citizens against dangerous violent and sexual offenders in countries such as the UK and United States. Precautionary logic, in particular, is transforming the meanings of, and relations between, allegations, truth-finding, and justice, labelled ‘public protection’. Using this approach, this chapter contextualizes the foundations of this broader cultural imperative by analysing particular legal and policy developments, including the development of ‘counter-law’ and surveillance assemblages against perceived dangers of sexual crime. It also illustrates how ‘risk’ itself is reconstituted in the politics of science and (un)certainty, with practical impacts on decision-making by professionals and apparent attempts at responsibilization of the wider public. The chapter thus presents an analysis on how the politics of risk and danger play out in the identification, detection, and pre-emption of sexual crime.Less
This chapter builds on previous work by the authors that characterized and analysed the significance of radical precaution in the processes of securing ‘protection’ for citizens against dangerous violent and sexual offenders in countries such as the UK and United States. Precautionary logic, in particular, is transforming the meanings of, and relations between, allegations, truth-finding, and justice, labelled ‘public protection’. Using this approach, this chapter contextualizes the foundations of this broader cultural imperative by analysing particular legal and policy developments, including the development of ‘counter-law’ and surveillance assemblages against perceived dangers of sexual crime. It also illustrates how ‘risk’ itself is reconstituted in the politics of science and (un)certainty, with practical impacts on decision-making by professionals and apparent attempts at responsibilization of the wider public. The chapter thus presents an analysis on how the politics of risk and danger play out in the identification, detection, and pre-emption of sexual crime.
Henrique Carvalho
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198737858
- eISBN:
- 9780191801501
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198737858.003.0002
- Subject:
- Law, Criminal Law and Criminology, Constitutional and Administrative Law
This chapter explores the main conceptual building blocks for a reconceptualization of the subject of criminal law and its role in the process of criminalization. It focuses mainly on an examination ...
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This chapter explores the main conceptual building blocks for a reconceptualization of the subject of criminal law and its role in the process of criminalization. It focuses mainly on an examination of how the criminal law and its subject are intrinsically related to how liberal societies are imagined, and how these images are in turn linked to a specific conceptual context and history. The chapter investigates the links between criminal law and notions such as citizenship and civilization, and the role of criminal law in the maintenance of civil order. It also presents the core of what is the main argument of the book, namely, that the subject of criminal law is intrinsically ambivalent, torn between the notions of responsibility and dangerousness.Less
This chapter explores the main conceptual building blocks for a reconceptualization of the subject of criminal law and its role in the process of criminalization. It focuses mainly on an examination of how the criminal law and its subject are intrinsically related to how liberal societies are imagined, and how these images are in turn linked to a specific conceptual context and history. The chapter investigates the links between criminal law and notions such as citizenship and civilization, and the role of criminal law in the maintenance of civil order. It also presents the core of what is the main argument of the book, namely, that the subject of criminal law is intrinsically ambivalent, torn between the notions of responsibility and dangerousness.
Henrique Carvalho
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198737858
- eISBN:
- 9780191801501
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198737858.003.0005
- Subject:
- Law, Criminal Law and Criminology, Constitutional and Administrative Law
This chapter concludes the book’s investigation into the conceptual foundations of the ambivalence found in contemporary criminal law and subjectivity. It discusses how this ambivalence relates to ...
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This chapter concludes the book’s investigation into the conceptual foundations of the ambivalence found in contemporary criminal law and subjectivity. It discusses how this ambivalence relates to the liberal social imaginary and to how this imaginary preserves a dichotomy between civil and political society. The chapter argues that this dichotomy allows the criminal law to appear legitimate and necessary even when it becomes authoritarian, and thus goes against the values which it is supposed to protect. The chapter develops this argument through an analysis of the political theories of G.W.F. Hegel and Jeremy Bentham.Less
This chapter concludes the book’s investigation into the conceptual foundations of the ambivalence found in contemporary criminal law and subjectivity. It discusses how this ambivalence relates to the liberal social imaginary and to how this imaginary preserves a dichotomy between civil and political society. The chapter argues that this dichotomy allows the criminal law to appear legitimate and necessary even when it becomes authoritarian, and thus goes against the values which it is supposed to protect. The chapter develops this argument through an analysis of the political theories of G.W.F. Hegel and Jeremy Bentham.
Henrique Carvalho
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198737858
- eISBN:
- 9780191801501
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198737858.003.0007
- Subject:
- Law, Criminal Law and Criminology, Constitutional and Administrative Law
This concluding chapter applies the theoretical framework developed throughout the book to the contemporary framework of criminal law. It traces the ambivalence of criminal subjectivity through the ...
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This concluding chapter applies the theoretical framework developed throughout the book to the contemporary framework of criminal law. It traces the ambivalence of criminal subjectivity through the modern development of criminal responsibility and liability in English criminal law, relying on the interaction between the work of criminal law scholars and the political sociology of citizenship proposed by T.H. Marshall. It concludes that the preventive turn in criminal law is primarily characterized by a condition of radical ambivalence, in which the responsibility and dangerousness of the subject of criminal law are found both overemphasized and in tension with each other. This condition, the chapter argues, is as much a consequence of contemporary socio-political insecurity as it is an expression of the inherently problematic character of liberal criminal law.Less
This concluding chapter applies the theoretical framework developed throughout the book to the contemporary framework of criminal law. It traces the ambivalence of criminal subjectivity through the modern development of criminal responsibility and liability in English criminal law, relying on the interaction between the work of criminal law scholars and the political sociology of citizenship proposed by T.H. Marshall. It concludes that the preventive turn in criminal law is primarily characterized by a condition of radical ambivalence, in which the responsibility and dangerousness of the subject of criminal law are found both overemphasized and in tension with each other. This condition, the chapter argues, is as much a consequence of contemporary socio-political insecurity as it is an expression of the inherently problematic character of liberal criminal law.
Peter Ramsay
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780199673612
- eISBN:
- 9780191751745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673612.003.0011
- Subject:
- Law, Criminal Law and Criminology, Legal History
Through a critique of Evgeny Pashukanis’s Marxist theory of criminal law, this chapter seeks to identify the historical conditions for the emergence of the victim as the key normative figure in ...
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Through a critique of Evgeny Pashukanis’s Marxist theory of criminal law, this chapter seeks to identify the historical conditions for the emergence of the victim as the key normative figure in criminal justice policy. It argues that the vulnerability of subjects defined as victims provides the normative foundation of the contemporary laws of public protection. This represents a reversal of the classical legal ideology of the abstract legal subject. Pashukanis explicitly ruled out the possibility of laws of the contemporary type, and exploring his error on this point exposes a one-sidedness in his presentation of the commodity form theory of law. Vulnerable subjects are defined by their dependence on other subjects and the basis of this vulnerability can be found in the exchange relations between commodity owners. The historical reasons for this reversal of the classical legal ideology are described and the implications for abolitionist criminal law theory considered.Less
Through a critique of Evgeny Pashukanis’s Marxist theory of criminal law, this chapter seeks to identify the historical conditions for the emergence of the victim as the key normative figure in criminal justice policy. It argues that the vulnerability of subjects defined as victims provides the normative foundation of the contemporary laws of public protection. This represents a reversal of the classical legal ideology of the abstract legal subject. Pashukanis explicitly ruled out the possibility of laws of the contemporary type, and exploring his error on this point exposes a one-sidedness in his presentation of the commodity form theory of law. Vulnerable subjects are defined by their dependence on other subjects and the basis of this vulnerability can be found in the exchange relations between commodity owners. The historical reasons for this reversal of the classical legal ideology are described and the implications for abolitionist criminal law theory considered.
Richard L. Lippke
- Published in print:
- 2016
- Published Online:
- March 2016
- ISBN:
- 9780190469191
- eISBN:
- 9780190469214
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190469191.003.0008
- Subject:
- Law, Criminal Law and Criminology
This chapter focuses on the controversial practice of pre-trial detention. Such detention has been portrayed by numerous legal scholars as contravening the presumption of innocence. This chapter ...
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This chapter focuses on the controversial practice of pre-trial detention. Such detention has been portrayed by numerous legal scholars as contravening the presumption of innocence. This chapter argues that the abundant grounds we have for limiting pretrial detention have little to do with a presumption of innocence. Reforms in the conditions of pretrial detention are desperately needed, so that it is clearly distinguishable from legal punishment proper. Relatively few accused persons can be shown to present dangers to the public. However, some do pose substantial risks, and their pretrial detention can be justified. Against those who maintain that pretrial detention is justified only to prevent absconding or interfering with the course of justice, this chapter argues that it can be justified for some accused persons who appear likely to commit other serious crimes before the current charges against them have been fully adjudicated.Less
This chapter focuses on the controversial practice of pre-trial detention. Such detention has been portrayed by numerous legal scholars as contravening the presumption of innocence. This chapter argues that the abundant grounds we have for limiting pretrial detention have little to do with a presumption of innocence. Reforms in the conditions of pretrial detention are desperately needed, so that it is clearly distinguishable from legal punishment proper. Relatively few accused persons can be shown to present dangers to the public. However, some do pose substantial risks, and their pretrial detention can be justified. Against those who maintain that pretrial detention is justified only to prevent absconding or interfering with the course of justice, this chapter argues that it can be justified for some accused persons who appear likely to commit other serious crimes before the current charges against them have been fully adjudicated.
Andrew Ashworth and Lucia Zedner
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198712527
- eISBN:
- 9780191780820
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198712527.003.0007
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
Preventive detention on grounds of dangerousness constitutes one of the most coercive powers that the liberal state can exert over the individual so its exercise calls for close attention to its ...
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Preventive detention on grounds of dangerousness constitutes one of the most coercive powers that the liberal state can exert over the individual so its exercise calls for close attention to its underlying justifications. This chapter asks upon what grounds preventive detention is justly imposed, on whom, and in what circumstances. It examines the different practices and conditions of preventive detention and of post-sentence civil commitment, for example Imprisonment for Public Protection, Life Imprisonment, and Extended Sentences, as well as provisions for parole on licence. And it considers the limits that should apply and the protections that should be afforded to those detained. It concludes by examining the purported ends of preventive detention to determine if they could be pursued in other, less liberty-depriving ways and suggests some principles that might guide and restrain its practice.Less
Preventive detention on grounds of dangerousness constitutes one of the most coercive powers that the liberal state can exert over the individual so its exercise calls for close attention to its underlying justifications. This chapter asks upon what grounds preventive detention is justly imposed, on whom, and in what circumstances. It examines the different practices and conditions of preventive detention and of post-sentence civil commitment, for example Imprisonment for Public Protection, Life Imprisonment, and Extended Sentences, as well as provisions for parole on licence. And it considers the limits that should apply and the protections that should be afforded to those detained. It concludes by examining the purported ends of preventive detention to determine if they could be pursued in other, less liberty-depriving ways and suggests some principles that might guide and restrain its practice.
