This article, prepared for the special issue on investigations, presents an original empirical analysis of the role of the motor vehicle in shaping how officers describe experiencing violence and perceiving danger during vehicle stops. Tens of millions of traffic stops occur every year, making vehicle stops the most common interaction that civilians have with law enforcement. Although traffic stops are commonly described as dangerous settings for police officers, little is known about how the motor vehicle itself shapes officer descriptions, perceptions, and experiences of danger and harm during these stops. The presented findings make at least four key contributions to scholarship and policing law and policy. First, the findings inform unfolding criminal law reforms surrounding the policing and criminalization of traffic offenses, which are major sources of racial disparity in, and net-widening of, the criminal justice system today. Second, the findings prompt questions about whether and when legal actors, and especially actors that regulate the police, should defer to officer danger narratives involving motor vehicles. Third, the findings prompt novel questions about technology and the law, and more specifically, the ability of new motor vehicle technologies to help diffuse officer perceptions of danger that stem from motor vehicles. Fourth and finally, the findings illustrate a need to pay greater attention to the motor vehicle as a source of officer danger and harm in official policing data in order to accurately measure the risks and costs of policing during vehicle stops.

Algorithmic risk assessment is hailed as offering criminal justice officials a science-led system to triage offender populations to better manage low- versus high-risk individuals. Risk algorithms have reached the pretrial world as a best practices method to aid in reforms to reduce reliance upon money bail and to moderate pretrial detention’s material contribution to mass incarceration. Still, these promises are elusive if algorithmic tools are unable to achieve sufficient accurate rates in predicting criminal justice failure. This article presents an empirical study of the most popular pretrial risk tool used in the United States. Developers promote the Public Safety Assessment (PSA) as a national tool. Little information is known about the PSA’s developmental methodologies or performance statistics. The dearth of intelligence is alarming as the tool is being used in high-stakes decisions as to whether to detain individuals who have not yet been convicted of any crime. This study uncovers evidence of performance accuracy using a variety of validity metrics and, as a novel contribution, investigates the use of the tool in three diverse jurisdictions to evaluate how well the tool generalizes in real-world settings. Policy implications of the findings may be enlightening to officials, practitioners, and other stakeholders interested in pretrial justice as well as in the use of algorithmic risk across criminal justice decision points.

This article examines the rationales to exclude evidence before International Criminal Tribunals that has been illegally obtained by private investigators. The appeal of private investigations has now reached the level of international criminal justice, with the establishment of the Commission for International Justice and Accountability. Investigative staff at the International Criminal Court and other International Criminal Tribunals are dependent on the work undertaken in the field by human rights monitors as fact finders, employed by IGOs, NGOs, and, in some cases, by governmental agencies. Considering the importance of private investigators for the administration of those Tribunals, potential dangers of such a cooperation easily take a backseat in a car that is driven by the anti-impunity agenda. Scenarios of investigators offering money to witnesses in return for information about a suspect and his or her criminal activities are a reality. While case law has addressed the topic of illegally obtained evidence by national authorities, the fate of evidence collected by private individuals in breach of human rights has rather been neglected. This article provides a conceptual basis for the exclusion or admission of this evidence.

This study looks at the principles that shape the structure of the whole of Thai criminal procedure law. It examines how the search for truth is attempted to be reconciled with the idea of a fair trial or procedural fairness. The conflict between the search for truth on the one hand and guaranteeing procedural rights of the accused on the other is particularly problematic in the Thai context. Thai law affirms that some evidence cannot be admissible if it is obtained by a violation of certain procedural norms. At the same time, the law allows judges to admit some unlawfully obtained evidence in the interest of justice. The conflict between various legal norms cannot be solved without permitting judges to exercise broad discretion in striking the right balance between discovering the true facts and protecting the rights of the accused. Thai legal education and practice does not allow a broad judicial discretion in accepting or rejecting evidence on the grounds that it was obtained unlawfully. As a result, there is an attempt to build a sophisticated system of rules to accommodate the interests of justice and fairness in different situations. This system, however, lacks clarity and consistency.

This article discusses flaws of Indonesia’s criminal procedural laws through an analysis of the Jessica Wongso case. After a televised trial in 2016, Wongso was convicted of murdering her friend Salihin, by putting cyanide in her coffee at a Jakarta café, and sentenced to 20 years’ imprisonment. The conviction was upheld on appeal in late 2018. The police obtained very limited evidence against Wongso, leaving prosecutors unable to determine the cause of Salihin’s death, much less to prove convincingly that Wongso was the perpetrator. By contrast, the defense mustered significant exculpatory evidence. But the judges, at first instance and on appeal, took an uncritical view of the prosecution evidence and ignored the defense case. Throughout the investigation and trial, Wongso was not accorded the presumption of innocence, partly because of Indonesia’s flawed or absent formal legal infrastructure for arrests, detentions, searches, and disclosure of prosecution evidence to the defense. It is also because highly prejudicial press coverage before and during trials is not prohibited and because judges lack professionalism. All this suggests a strong need for reform—not only to Indonesia’s criminal procedure law, but also to the way it is applied in practice.

Singapore is well known for its harsh stance against drug traffickers, with drug trafficking carrying some of the most severe penalties available in law. This includes the mandatory death penalty where the weight of the drug exceeds a statutory threshold. The act of trafficking is also broadly defined in the Misuse of Drugs Act 1973 and can encompass a wide range of activities. In a series of authoritative decisions since 1994, this has also included the act of safekeeping drugs for another. However, the Singapore Court of Appeal revisited this definition in the recent decision of Ramesh a/l Perumal v Public Prosecutor [2019] 1 SLR 1003, finding that the act of safekeeping drugs does not fall under the definition of “trafficking.” As this paper argues, this new definition is an attempt by the Court of Appeal to better delineate the varying roles and culpability of those involved in the drug trade, but will have future implications for drug prosecutions and enforcement.

When looking to identify the basic ingredients of criminal responsibility, reference is standardly made to a voluntary act requirement (VAR). We blame a defendant (D) for what she has done or (perhaps) failed to do where such doing or failing to do is proscribed by law; we do not punish mere thoughts or character. However, despite the continued appeal of the VAR in abstract principle, the precise definitions and restrictions entailed within it are not always clear, and its usefulness in preventing inappropriate criminalization is openly (and in many cases correctly) challenged. Principally, and crucially, the VAR has received sustained attack in recent years from critics within the philosophies of action, highlighting its descriptive and normative shortcomings. It is contended that such criticism is misplaced. This article provides defense to a stripped-back definition of the VAR, distinguishing the general definition of action in philosophy from the definition of action within the criminal law, and seeking to identify and preserve a doctrinally workable model of the latter.

The American legal system currently tends to excuse sleepwalking killers, particularly based on the involuntary act defense, more so than the insanity defense. By contrast, the law generally does not excuse psychopathic murderers. However, the status quo may not be the optimal or most just solution to this legal dilemma; depending on one’s philosophical beliefs regarding the tension between society’s interest and the accused’s rights, one can identify various flaws within the prevailing application of the insanity defense in cases involving sleepwalking and psychopathy. As the law is constantly evolving, there is space for growth in this area, especially with the advancement in neuroscience, which can offer more insight into sleepwalkers’ and psychopaths’ brains. In approaching the complex questions of whether and how the law should excuse sleepwalking killers and psychopaths from punishment, this article turns to relevant findings from neuroscience for support and focuses on one particular approach, that of the Model Penal Code (MPC) insanity defense. We begin with an overview of the relevant criminal law doctrine in contextualizing the MPC’s approach to insanity defense. We then apply the relevant MPC section, § 4.01, to the sleepwalking killer and psychopath contexts, bearing in mind relevant studies and findings in neuroscience and related scientific disciplines, as well as their limitations at this stage. Part of the analysis considers the U.S. Supreme Court’s latest insanity law decision, Kahler v. Kansas (2020), in relation to the subject matter of this article.

The main argument of this article is that only a clear conception of the purpose of punishment can orient the debate about the positioning of the fault requirement and strict liability doctrine in criminal law. A categorization of the varieties of strict liability offenses, as well as an adequate model for normatively appraising the legitimacy of these deviations from the principle of culpability, should be based on a systematic analysis of criminal law’s role and function in society. As is argued, the original purpose of criminal law consists in the stabilization of norms by means of punishment. Taking up that finding, this work provides a detailed view of the distinct mechanism of placing blame, allowing for the presentation of a clear scheme for categorizing and appraising the variety of strict liability offenses. It is stated that offenses substantively deviating from the standard mechanism of placing blame can potentially result in over-punishment, which is dysfunctional and not justifiable. Properly placing blame is essential for the appropriate fulfillment of criminal law’s purpose in society. Therefore, the claim of the principle of culpability and critiques of strict liability doctrine find their basis not only in considerations of fairness, but also social necessity. By presenting a systematic categorization of strict liability offenses, this research offers a clear approach to a frequently discussed doctrine and establishes new arguments against its legitimacy.

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs. It is argued here that the two are in fact reconcilable, in a fashion. We cannot declare a winner in the distributive principle wars but something more like a truce. Specifically, good utilitarians ought to support a distributive principle based upon desert because the empirical evidence suggests that doing justice for past wrongdoing is likely the most effective and efficient means of controlling future crime. A criminal justice system perceived by the community as conflicting with its principles of justice provokes resistance and subversion, whereas a criminal justice system that earns a reputation for reliably doing justice is one whose moral credibility inspires deference, assistance, and acquiescence, and is more likely to have citizens internalize its norms of what is truly condemnable conduct. Retributivists ought to support empirical desert as a distributive principle because, while it is indeed distinct from deontological desert, there exists an enormous overlap between the two, and it seems likely that empirical desert may be the best practical approximation of deontological desert. Indeed, some philosophers would argue that the two are necessarily the same.

It is often maintained that the criminal law is supposed to intervene only when a certain social norm has become so significant within a given society to justify its protection by means of penal sanctions. The criminal law is thus thought to mirror a hierarchy of values it neither shapes nor contributes to building; rather, it is required to stand at least one step behind social change. This article challenges this view, presenting a normative account that contributes to the debate on what is permissible for the criminal law to try to achieve. It does so by defining and theoretically substantiating the “transformational function” of the criminal law. The term refers to the use of criminalization and punishment to change, rather than merely reflect, social norms, attitudes, and beliefs alongside, and combined with, non-penal policy-making tools in contested domains. Four operational conditions of legitimacy are identified and discussed. Within such operational boundaries, this article contends that the criminal law can play an important role in promoting social change—i.e., the establishment of new norms and values—as well as helping the coagulation of norms, attitudes, and beliefs not yet fully entrenched within the societal body.

This article examines the rule on transferred intent under Italian criminal law and argues that such rule does not only concern the mental element of the crime ( mens rea ), as generally considered in both Italian and Anglo-American literature, but also involves a multiple offense scenario in which a willful offense attempted against the intended target coexists with a negligent one actually carried out against an unintended victim. According to the rule on transferred intent, the two offenses should be considered as a single offense for the purpose of sentencing.

Emoji and emoticons are becoming increasingly prevalent in criminal law cases around the world, although some judicial officers currently have no experience of them or of interpreting them. This article offers an in-depth examination of the area of emoji and emoticons in criminal law. It provides an overview of emoticons and emoji, including their history, their global popularity of use in modern communication, and their particular interpretative difficulties. It canvasses and analyzes international criminal cases involving emoji and emoticons. It provides a valuable table that lists each such case in which emoji and emoticons are present. In reviewing the existing international case law, this article identifies the handful of cases in which judicial officers have attempted to interpret emoji and emoticons in the criminal law context. However, it also demonstrates the absence of clear guidance on methods of interpreting emoji and emoticons. Most importantly, this article aims to assist filling this void by proffering important recommendations regarding interpreting emoji and emoticons in the criminal law context.

Across societies labels rarely are met with the degree of contempt and hatred that has become inherent in the label of “sex offender,” applied to those who offend the morals, ethics, and values of citizens because of the actions (or sexual affinities) in which they are believed to have engaged. In the current article, we examine the diverse ways the sex offender is assembled, drawing on assemblage theory. We examine the signifiers attached to bodies suspected, accused, and convicted of sex offenses and the material connections that come together as part of the chimeric sex offender assemblage. We demonstrate that the arrangement of signifiers and materiality reflects the complex landscape that is expressed in the image of the monstrous sex offender. Our contribution to the literature on sex offenders lies in demonstrating the chimeric nature of the sex offender.

Our sexually violent predator (SVP) laws are a miserable failure. We suggest a turn to international human rights law (IHR) as a source of rights for this population, and consider this matter from the perspective of comparative law . Many nations have enacted laws that both mirror and contradict early developments in United States jurisprudence, but there, challenges to community containment and preventive detention laws have been more successful when based upon IHR law. Also, registry notification is generally far more limited, and details are usually confined solely to police agencies. We must consider laws and court decisions from other nations when implementing US law reform in this area. In Part I, we consider the implications of IHR law , and assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We also consider the human rights issues and violations that have resulted from domestic enactment of International Megan’s Law. In Part II, we apply comparative law in an effort to determine how other nations have struggled with some of the basic issues that have been focused on by domestic jurisdictions since the Supreme Court’s decision in Kansas v. Hendricks (1997). In Part III, we assess the application of therapeutic jurisprudence (TJ) to the legal and human rights issues discussed prior, in an effort to determine whether other nations have more successfully implemented TJ principles to combat some of the seemingly-intractable problems raised in SVP cases. We conclude by offering suggestions for US-based policymakers.