Wednesday, April 10, 2019
John Pratt and Michelle Miao (Victoria University of Wellington - Institute of Criminology and The Chinese University of Hong Kong, Faculty of Law) have posted Risk, Populism and Criminal Law (New Criminal Law Review (2019, Forthcoming)) on SSRN. Here is the abstract:
This article outlines the way in which criminal law in the main English speaking ones especially is being broadened from its essentially normative and moral response to criminal 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 explaining these developments, it is argued that the emphasis on controlling risk has become the response to issues of uncertainty and insecurity brought about by the post 1970s economic and social restructuring of these societies, reflecting the normalization of risk control. Its emphasis on utilitarianism and efficiency then overrides many of the modernist assumptions previously associated with criminal law. To control risk, it makes use, for example, of hybrid and retrospective legislation, while reversing or lowering burdens of proof if these are thought to unfairly advantage offenders/defendants. This reshaping of criminal law also necessitates a new understanding of human rights.