Theoretical Criminology 16(4)

Theoretical Criminology, November 2012: Volume 16, Issue 4

Law’s knowledge: On the susceptibility and resistance of legal practices to security matters
Susanne Krasmann

Contrary to the prevailing debate on the governance of security with its focus on emergency and exception, a Foucauldian perspective enables us to capture how law transforms in a rather gradual and unnoticed manner. As a practice, law constitutes itself through knowledge. Relying upon knowledge, it is notoriously susceptible to security matters. This will be illustrated by analysing the rationality of pre-emptive action that is facilitated by automated surveillance technologies. Taking a recent torture debate as an extreme example elucidates that a conception of law as practice also serves as a tool of critique and articulating dissent.

Media justice: Madeleine McCann, intermediatization and ‘trial by media’ in the British press
Chris Greer and Eugene McLaughlin

Three-year-old Madeleine McCann disappeared on 3 May 2007 from a holiday apartment in Portugal. Over five years and multiple investigations that failed to solve this abducted child case, Madeleine and her parents were subject to a process of relentless ‘intermediatization’. Across 24–7 news coverage, websites, documentaries, films, YouTube videos, books, magazines, music and artworks, Madeleine was a mediagenic image of innocence and a lucrative story. In contrast to Madeleine’s media sacralization, the representation of her parents, Kate and Gerry McCann, fluctuated between periods of vociferous support and prolonged and libellous ‘trial by media’. This article analyses how the global intermediatization of the ‘Maddie Mystery’ fed into and fuelled the ‘trial by media’ of Kate and Gerry McCann in the UK press. Our theorization of ‘trial by media’ is developed and refined through considering its legal limitations in an era of ‘attack journalism’ and unprecedented official UK inquiries into press misconduct and criminality.

Making people criminal: The role of the criminal law in immigration enforcement
Ana Aliverti

This article analyses the recent expansion of immigration offences in Britain. Drawing on criminal law scholarship, it considers the reasons for relying on the criminal law in immigration enforcement. On the one hand, criminal law is used symbolically. In this view, the creation of criminal offences may be read as an attempt to appease a sector of the electorate, the media and the Opposition about the ‘immigration problem.’ By introducing these offences, the government sent a message that the situation is under control. On the other hand, the criminal law serves regulatory functions, offering the UK Border Agency a range of options for dealing with unwanted immigrants. In practice, most immigration offences are rarely enforced. Instead, the criminal law often seems to primarily work as a threat, relied on to enforce compliance with immigration rules. A criminal prosecution is reserved for those foreigners for whom the primary sanction –expulsion- cannot be carried out. In these cases, a criminal prosecution and conviction facilitate administrative proceedings leading to removal. Given that the criminalization of immigration breaches is in stark contrast with a number of criminal law principles, this paper argues that the normative justification of criminal law in immigration matters is weak and it should have no role to play in the enforcement of immigration rules.

Dramatic lives and relevant becomings: Toward a Deleuze- and Guattari-inspired cartography of young women’s violent conflicts
Ann-Karina Henriksen and Jody Miller

The article explores how violence works to produce young women’s precarious positions in social milieus characterized by multiple marginalization. By paying attention to the micropolitics of violent engagements we argue that violent conflicts can be viewed as strategies for escaping positions of marginality into positions of relevance. The analysis builds on empirical data from Copenhagen, Denmark, gained through ethnographic fieldwork with the participation of 20 female informants aged 13–22. The theoretical contribution proposes viewing conflicts as multi-linear, multi-causal and non-chronological to account for the emotional tension and lived experience of violent conflicts. Finally we identify the need for further studies on how technosocial forms of communication play into violent conflicts among youth.

Anchoring the sentencing scale: A modest proposal
Richard L Lippke

This article proposes a partial solution to the anchoring problem in sentencing theory. I advance what I term the ‘commensurate harms principle’, according to which the losses and deprivations imposed on convicted offenders as punishment should be kept commensurate with the ‘standard’ harms (Von Hirsch and Jareborg, 1991: 4) their crimes cause victims. The principle is defended as an aid to setting sentences for core criminal offense types. Intelligent application of the principle requires us to gain an informed understanding of both the harms caused by crimes and the harms done by criminal sanctions, particularly imprisonment. Various objections to the principle are addressed, including claims that victim and penal harms cannot be compared and that the harms produced by crimes and criminal sanctions extend beyond victims and offenders. I contend that the commensurate harms principle would counsel the sparing use of imprisonment and often support less harsh sentences than are the norm in many countries.

Re-imagining youth justice: Cultural contestation in the Kimberley region of Australia since the 1991 Royal Commission into Aboriginal Deaths in Custody
Harry Blagg

Twenty years on from the 1991 Royal Commission into Aboriginal Deaths in Custody in Australia the picture appears bleaker than in the early 1990s. This article adopts a post-colonial stance to examine emerging Aboriginal strategies on youth justice in Western Australia that focus on building forms of Aboriginal ‘cultural capital’ and ‘community owned’ justice mechanisms on Aboriginal country as an alternative to failed strategies of incarceration and ‘community based’ justice. Aboriginal contestation, or what I call, after Edward Said, ‘contrapuntality’ increasingly takes place through subtle ‘inter-cultural’ work in various ‘engagement spaces’ in-between Aboriginal and mainstream cultures. These practices challenge mainstream government to practise what it preaches in relation to its claimed respect for Aboriginal cultural rights. The article reports on Aboriginal owned and controlled cultural processes in the Kimberley region of Western Australia that are contrapuntally challenging established ideas about the meaning of justice for Aboriginal youth.

Reconceptualizing hate crime victimization through the lens of vulnerability and ‘difference’
Neil Chakraborti and Jon Garland

This article suggests that the concepts of vulnerability and ‘difference’ should be focal points of hate crime scholarship if the values at the heart of the hate crime movement are not to be diluted. By stringently associating hate crime with particular strands of victims and sets of motivations through singular constructions of identity, criminologists have created a divisive and hierarchical approach to understanding hate crime. To counter these limitations, we propose that vulnerability and ‘difference’, rather than identity and group membership alone, should be central to investigations of hate crime. These concepts would allow for a more inclusive conceptual framework enabling hitherto overlooked and vulnerable victims of targeted violence to receive the recognition they urgently need.