In May 2018, the U.S. Supreme Court issued its opinion in the case of McCoy v. Louisiana , holding that defendants have a constitutional right to maintain their innocence at trial. Under McCoy , lawyers may not concede their clients’ guilt during trial when their clients insist on maintaining innocence, even if doing so would be a reasonable tactical decision. In this paper, we show how the case implicates an array of common problems concerning lawyer-client disagreement, and we argue that the Model Rules of Professional Conduct offer deficient guidance in this area. In particular, in relying on lawyer withdrawal as a remedy for lawyer-client disagreement, the Model Rules neglect to recognize that lawyers may have an obligation to stick with their clients despite serious disagreements over aspects of the representation. The Rules also gloss over the considerable administrative burden associated with withdrawal. After delineating some problems with the Model Rules’ approach to lawyer-client disagreement, we propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate.

Public prosecutors are a key element within the legal complex, and crucial to the effective implementation of legal reforms. China’s procurators (public prosecutors) have previously colluded with local governments, police, and courts to “strike hard” against crime while overlooking systemic beating and torture of detained suspects to obtain confessions, shoddy investigative practices, and frequent miscarriages of justice. However, fifteen sets of Guiding Cases issued by the Supreme People’s Procuratorate since 2010 promote an unprecedented change in Chinese procurator culture away from “striking hard” to substantive protection of criminal suspects’ rights and exclusion of tainted evidence. They reinforce criminal procedure reforms since 2010 by demonstrating how procurators should protect innocent people against wrongful convictions and police brutality. They also stress the broader duty of China’s procurators to uphold the public interest against corrupt businesses and officials, especially in food safety, land-taking, and environmental protection cases. With other key actors in China’s “legal complex”—rights lawyers and civil society groups—still suppressed by the government, this effort to transform procurator culture is an essential, though still incomplete, step on China’s tortuous path toward a fair and just legal system.

This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.

This article sets out guidelines for law reform processes to account for the challenges that terrorism may pose to the rule of law and democracy. As a response to terrorism, an increase in reforms of laws and administrative measures has been seen across jurisdictions. The substantive offenses themselves have been criticized, but as of yet, the theoretical issues that may arise during processes of reform have not been considered. However, law reform as a direct and immediate response to such events may curtail the rule of law and democracy: there may be inadequate time for debate in the legislature regarding proposed measures, or the debate may be centered on arguments based on fear and hate toward perpetrators. This article argues that this may curtail individual autonomy of citizens and truncate democracy. It sets out guidelines for how processes of law reform may treat people as capable of self-moderation.

Problem-solving courts and restorative justice programs provide important new alternatives to cope with recurring problems in the criminal justice process. But they are much more. They are harbingers of a new theory of the criminal justice process that challenges traditional accounts in fundamental ways. Although practices akin to problem-solving courts and restorative justice have long operated outside or below the radar of the theory of criminal law and the adjudicative process, over the past few decades these practices have come to the fore and are now supported with full-blown theories, which threaten to displace traditional accounts of criminal responsibility, criminal liability, and indeed the core features of the criminal justice process. The new theories are based on theories of regulation, where the objective is not so much to enforce the law as it is to secure compliance to the law in order to facilitate harm reduction and restore social order. Nowhere is this new development so clearly seen as in the opening chapters of John Braithwaite’s important book, Restorative Justice and Responsive Regulation . In this book, Braithwaite offers a full-throated theory of the new criminal justice process that is based on recent developments in regulatory theory and, most particularly, responsive regulation, which Braithwaite helped to develop. This model is implicit to varying degrees in any number of recent developments in the criminal justice process, and in this paper, I argue it has the potential for displacing the classical theory of criminal law.

This article provides an empirical, comparative analysis of three criminal justice programs that reflect different social and ideological accounts: community courts, arraignment hearings, and restorative justice. The study draws on empirical findings that have been collected over three years in Israel, through observations and archival documentation of these mechanisms. Using the Criminal Law Taxonomy developed elsewhere by the authors as an analytical tool, the comparison is based on characteristics that relate to the structure, content, stakeholders, and outcomes of these justice mechanisms, emphasizing the plurality we have today in multi-door criminal justice systems. The comparative analysis highlights differences and similarities among various justice mechanisms, and offers policy makers and criminal justice practitioners important insights for referring different cases to various mechanisms.

As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex. This essay explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders. But we need not view that as fatal to multi-door criminal justice. Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals. At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones. The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal—or unequal in more palatable ways—than what we have now.

“Western” democracies take an uneven view of the state’s role in reintegrating the incarcerated following punishment. Particularly in the United States, where retributivism remains punishment’s dominant justification, questions of punishment center on how wrongdoers ought to suffer for transgressions. Thus, reintegrative programs are viewed as a question of policy preference for various jurisdictions, and a question of grace for the state. A republican political theory, centered on our civic bonds, emphasizes different commitments. On this view, punishment is justified where a citizen attacks another in ways that deny their civic equality and undermine our ability to maintain a common civic life. But the same justification that requires protecting civic equality through punishment compels the state to reintegrate offenders after punishment; the right to punish and the obligation to reintegrate are complementary political duties. As such, reintegrative policies are not merely the state’s choice but rather a state duty and an offender’s right. This article explores the obligations the state owes ex-felons in reintegrating them into civic society across a range of political and civic rights. It also addresses reintegration’s important role in ameliorating the racial scars of American criminal punishment.

A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.

Responsibilities to protect and prevent elite crimes are best energized by enforcement that walks through many doors. Effective deterrence is rarely delivered by the International Criminal Court. Yet deterrence is possible when it patiently cumulates through many doors. Likewise truth, justice, and reconciliation can achieve little through one door and much through many. Opening more doors to the complexly cross-cutting character of survivor guilt with mass atrocities can better open possibilities for future prevention and reconciliation than simply doors to courtrooms that find a criminal on one side of complex sequences of atrocity. The Nuremberg and Tokyo War Crimes Trials opened quickly after World War II. They did not prove to hold keys to truth and reconciliation for Germany until the Eichmann trial finished in Jerusalem in 1962. Why? Still today, non-confession by the U.S. to Hiroshima/Nagasaki as war crimes has meant truncated Japanese reconciliation. Different kinds of doors are needed with crimes like the Dresden and Tokyo fire bombing, the rape of Nanjing and the “comfort women” issue. These have included citizens tribunals, truth commissions, and indigenous justice in cases like Bougainville that rejected the truth commission model. When we reflect upon door diversity, transitional justice turns out not to be very focused on justice or international criminal law, and not to be at all transitional, but rather a maze of doors to justice of diverse kinds that open or close across the longue durée (as developed in the work of Susanne Karstedt). 1

The Supreme Court’s constitutional regulation of the American death penalty has yielded a plethora of doctrines that have shaped an alternative criminal justice process that is (mostly) limited to capital cases. Many of these doctrines offer a vision and practice of “roads not taken” in the ordinary criminal justice process that would be attractive improvements in that larger system. We consider three of these doctrines: (1) more searching review of the proportionality of sentencing outcomes; (2) imposition of a requirement of individualized sentencing that has led to the investigation and presentation of in-depth evidence in mitigation; and (3) greater regulation of the adequacy of defense counsel that has moved closer to a “checklist” model of mandated practices. Each of these doctrines was born and developed under the Court’s “death is different” regime of constitutional regulation, and each of them has to some limited extent moved beyond the strictly capital context into the broader criminal justice process. We explain how these alternative models present attractive improvements for the broader noncapital system—a view that casts the Court’s regulation of the American death penalty as a progressive laboratory that can yield alternative, more protective, and more idealized processes for the ordinary criminal justice system. Yet we also caution that the “differentness” of death—and of juvenile offenders, the noncapital context to which the Court is most likely to import its death penalty innovations—can also serve to normalize and entrench the less protective, less idealized practices that exist outside of these realms.

Criminal law is being broadened from its normative and moral response to wrongdoing to include the capacity to act as a preventive force. As well as reacting to crime that has been committed, it also attempts to control the risk of future crime. In so doing, preventive criminal law makes use of hybrid and retrospective legislation, while reversing or lowering burdens of proof if these are thought to unfairly advantage offenders/defendants, raising important human rights issues. We argue that this emphasis on controlling risk was the response to issues of uncertainty and insecurity generated by post-1970s economic and social restructuring. Where, though, do these criminal law characteristics of “risk society” now sit, given the contemporary rise of populist politics? Populism promises an end to risk and its attendant uncertainties and anxieties, but it is already extending rather than reversing the preventive capacity of criminal law. This is because populism continuously needs to find new victims that it embraces and pledges to defend against their assailants, law-breakers or otherwise, real or imagined. The focus of risk control thus embraces new populations—refugees, asylum seekers, immigrants of all kinds, legal or otherwise. Conventions such as the rule of law and the separation of powers that might previously have limited such interventions are brushed aside as outmoded examples of elitist thinking. Instead, security is prioritized over residual concerns about due process, while also prioritizing public protection over individual rights.

Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.

This article examines the role of the criminal judge in light of the vanishing trial phenomenon and the emergent reality of many doors to process legal conflicts in both the civil and criminal domains. It focuses on judicial conflict resolution (JCR), which is any activity conducted by judges in order to promote consensual disposition of legal cases, in “Plea Bargains Facilitating Days” ( moqed ) in Tel-Aviv Magistrate’s Court. We conducted quantitative and qualitative analyses of data collected from observations of 717 hearings in 704 criminal cases and found that, on average, 5.55 (SD = 3.62) hearings were required for disposing of a case, and the average duration of a legal proceeding from indictment to closure was 548.55 (SD = 323.17) days. In most of the hearings the judges’ role was confined to managerial-bureaucratic decisions intended to enable the negotiation between the parties. JCR activities occurred in only 16.9 percent of the hearings, and we identified six types of JCR practices in the promotion of plea bargains: narrow and broad facilitation of negotiations between the parties, forecasting the legal outcome, negatively presenting the judicial process, using lawyer-client relations to promote agreement, and using Alternative Dispute Resolution (ADR) techniques. These findings are compared to previous findings on the roles of judges in civil pretrial proceedings, and the more active role of the civil judge in promoting settlements is discussed. We further discuss the possibility of expanding a therapeutic and rehabilitative approach in the framework of criminal JCR during preliminary hearing days, which become today the main door of criminal justice.

Expertise in multi-door criminal justice enables new forms of intervention within existing criminal justice systems. Expertise provides criminal justice personnel with the rationale and means to use their authority in order to carry out their existing roles for the purpose of doing (what they see as) good. In the first section, we outline theoretical frameworks derived from Gil Eyal’s sociology of expertise and Thomas Haskell’s evolution of moral sensibility. We use professional stakeholder interview data ( N = 45) from our studies of three emerging and existing prostitution diversion programs as a case study to illustrate how criminal justice actors use what we define as primary, secondary, and tertiary expertise in multi-agency working groups. Actors make use of the tools at their disposal—in this case, the concept of trauma—to further personal and professional goals. As our case study demonstrates, professionals in specialized diversion programs recognize the inadequacy of criminal justice systems and believe that women who sell sex do so as a response to past harms and a lack of social, emotional, and material resources to cope with their trauma. Trauma shapes the kinds of interventions and expertise that are marshalled in response. Specialized programs create seepage that may reduce solely punitive responses and pave the way for better services. However empathetic, they do nothing to address the societal forces that are the root causes of harm and resultant trauma. This may have more to do with imagined capacities than with the objectively best approaches.

Our paper surveys the development of criminal hybrid models in two continental jurisdictions, Italy and France, following the 1987 Recommendation of the Committee of Ministers of the Council of Europe to accelerate criminal proceedings through the introduction of guilty pleas, out-of-court settlements and simplified proceedings. We describe various frameworks for criminal justice as a multi-door arena, of which the plea bargaining is but one of several possibilities. In our review, we emphasize consensual elements, the place of the search of truth, and the role of the judges and other stakeholders. We outline the different paths that France and Italy have taken as incorporating adversarial and inquisitorial elements to increase efficiency. The French system made gradual modifications and remained inquisitorial by nature. Aside from the more recent integration of proceedings without trial inspired by plea bargaining, it has developed doors of abbreviated trials where the investigation stage is minimized. This has resulted in a different version of the vanishing trial—the vanishing investigation. The Italian system, on the other hand, has announced a drastic transformation to an adversarial framework of trial, while adopting mainly proceedings without trial. This shift has not resulted in a vanishing trial phenomenon, and currently, the full adversarial-type trial remains the main door in Italy. We describe the sequence of transformations of these systems and emphasize the significance of this contemporary patchwork of doors in terms of the role of the judges and the possibility of implementing a conflict resolution criminal justice perspective.

Restorative justice is based on mutual respect and inclusion through dialogue. This approach may be threatened in current severe times, characterized by rampant individualism and mutual distrust. In crime and justice issues, exclusion and punishment are pushing away approaches based on inclusion and persuasion. In such a socio-cultural climate, restorative justice is threatened indeed to being co-opted as an extension to the predominant punitive and controlling tendency. However, countervailing forces persist in social life, social practice, and in the arts. A social-scientific tendency is also aware of its social responsibility and seeks to serve the quality of social life based on more mutual respect, solidarity, and taking active responsibility. Restorative justice can be a part of these countervailing forces, if it safeguards its roots in this socio-ethical groundstream. It may be a spearhead of what we can call a “criminology of trust,” a criminology that understands that all policy regarding crime and justice issues must be grounded in respect, inclusion, and persuasion. Particularly, restorative justice’s contribution to this is twofold. First, it offers a realistic and more positive alternative to detrimental punitiveness. Second, it contributes to de-dramatizing and demystifying the image of crime and criminals to more realistic dimensions (which are in themselves serious enough).