By Christopher Slobogin
Physical liberty is the most fundamental of all constitutional rights. Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest. Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.
Unpublished paper: (August 15, 2024).
By Scottish Government, Safer Communities Directorate
Summary
Research shows further evidence on the negative impact of rape myths and misconceptions on the complainer, but also raises concerns about perceived fairness by legal professionals when using single judge trials.
Overall, there is a lack of empirical research comparing modes of trial for rape cases, which makes it difficult to draw any robust conclusions in relation to their impact on the complainer, rights of the accused, public confidence in the justice system and conviction rates.
That said, there are some tentative indications that the complainer experience may be improved by a single judge trial model, but it might be more dependent on wider court procedures and approaches to (cross) examination than the mode of trial itself.
Providing a written reason of verdict is seen as a clear advantage of single judge trials, both for the complainer and accused.
Studies suggest that considering the rights of the accused should include agreeing on the justifications/criteria for single judge trials, establishing clear procedures to ensure consistency and transparency and addressing (implicit) bias and diversity in the judiciary.
Significantly, where single judge trials for serious offences have been adopted, e.g. in countries such as New Zealand, Australia, Canada and the United States, it is by choice of the accused. There were no instances found of jurisdictions introducing alternatives to jury trials specifically for rape cases.
There is no clear data on the effect of changing mode of trial on public confidence in justice system, although studies have shown a clear support of the public for the jury system. These studies however, did not ask directly about changing mode of trial in specific cases, such as for rape offences.
The evidence is mixed on conviction rates, from lower, to no difference, to higher rates of conviction for cases tried by single judge, although, again, the evidence is limited and not specific to rape cases.
Literature discussing mixed panels of professional and lay judges point to the possibility to mitigate concerns about the lack of community engagement and potential bias with one decision-maker, while preserving some of the advantages of a single judge trial such as clearer judicial direction and a reasoned written verdict.
Overall, the literature suggest that to understand the impact of a change in mode of trial, it is important to take into account how a new mode of trial interacts with already established procedures in the criminal justice system. To improve the complainer experience additional reflection would be required on pre-trial and cross-examination procedures and training given to legal professionals.
Taking into account that the evidence presented is limited and not always specific to sexual offences, it is difficult to make a clear translation to the context of a Scottish pilot for rape offences. A pilot can offer valuable and much needed empirical data and insight on the effects of a change in mode of trial.
Edinburgh: Scottish Government Safer Communities Directorate, 2023. 40p.
By Dubber, Markus Dirk
In The Sense of Justice, distinguished legal author Markus Dirk Dubber undertakes a critical analysis of the “sense of justice”: an overused, yet curiously understudied, concept in modern legal and political discourse. Courts cite it, scholars measure it, presidential candidates prize it, eulogists praise it, criminals lack it, and commentators bemoan its loss in times of war. But what is it? Often, the sense of justice is dismissed as little more than an emotional impulse that is out of place in a criminal justice system based on abstract legal and political norms equally applied to all. Dubber argues against simple categorization of the sense of justice. Drawing on recent work in moral philosophy, political theory, and linguistics, Dubber defines the sense of justice in terms of empathy—the emotional capacity that makes law possible by giving us vicarious access to the experiences of others. From there, he explores the way it is invoked, considered, and used in the American criminal justice system. He argues that this sense is more than an irrational emotional impulse but a valuable legal tool that should be properly used and understood.
New York: NYU Press, 2006.
