Skilling’s martyrdom: The case for criminalization without incarceration

This paper restricts itself to crimes involving corporate fiduciaries taking bad decisions at the expense of shareholders (corporate governance offenses). The arguments do not apply to fraud as moral wrongfulness exists in that case. To the extent that the actions covered by this paper are blameworthy, I argue that this determination must be disentangled from punishment. Disentanglement of blame from deserts suggests a via-media between criminalization and decriminalization - criminalization without incarceration. Accordingly, the legal process stops at the determination of guilt. The paper advances the criminalization debate because it does not get bogged down in the irreconcilable quarrel about whether corporate governance misbehavior ought to be criminalized for deterrence, retribution, or rehabilitation reasons, and whether it achieves any of these purposes. For these offenses, I argue that whichever theoretical justification underpins the decision to criminalize, imprisonment must not follow conviction. The conviction, despite the lack of incarceration, and the consequential sanctions likely to be imposed on the wrongdoer are sufficient to satisfy the three main justifications for criminalization. In appropriate cases, disgorgement of the offender’s gains will aid in the achievement of these objectives. The model proposed by this paper would yield significant savings by reducing prison costs. It would also allow the state to take advantage of the disproportionate cost/burden of conviction on corporate governance offenders. Owing to the offenders’ high earning potential, deterrence can be achieved at lower cost by conviction alone because the cost of incarceration does not have to be borne by the state whereas the destruction of capacity to generate similar (or indeed, any) income has to be suffered by the offender even without going to jail. If the cost of incarceration is the same for offenders with different earning capacities, imprisoning those with very high earning capacities is a waste of social capital if the objectives sought to be achieved by incarceration can be achieved through other means. Further, the cost of a conviction can be predicted with sufficient certainty in the case of white-collar criminals by looking at their earnings history, and in many cases this can be a significant sum. Unlike the common criminal who may not have a similarly predictable earning capacity and therefore suffer the same extent of monetary loss from a conviction, this loss ought to serve the deterrence function without the need for the state to spend money imprisoning the offender. In addition to loss of earning capacity, clawing back ill-gotten gains significantly adds to disutility. The paper is set out as follows: Part II briefly outlines the scope of the wrongs tackled as stemming from the principal-agent relationship in corporate law, and the inability of the law to overcome effectively problems resulting from the collectivization of the principal in that relationship. In Part III, I argue that conviction without imprisonment is a second-best alternative to decriminalization in cases where the conduct is blameworthy, and results in non-consensual harm. Part IV demonstrates the disutility caused by conviction alone to show that the objectives of criminalization can be satisfied without the need for imprisonment. Part V asserts that consequential sanctions like shaming add to the disutility of conviction. Part VI ties the thesis to Skilling’s conviction for bad business judgment devoid of moral wrongfulness to illustrate the problems with conflating blame and punishment. Part VII concludes.

Seven heavens? The character and importance of afterlife belief among contemporary Australians

This article draws on in-depth qualitative interviews with 52 people to examine the meaning and character of afterlife belief among contemporary Australians. It explores the varieties of afterlife belief and considers the impact such beliefs have, particularly in relation to death and dying. The analysis reveals that afterlife belief is varied, individualistic and mainly arrived at with little to no reference to orthodox religious teaching. People variously believe in heaven, reincarnation, life on another planet or something more abstract. Those who follow faithfully a religious tradition are largely ignorant of detailed theological doctrines about life after death and like other kinds of believers, exercise their own authority and judgment over matters of belief.

Mixed feelings: Anglo-Indians and the distribution of the sensible in Indian cinema

Hollywood, and various regional cinemas in India typically represent Mixed-Race Anglo-Indians as a degenerate community marked by lax morals, alcoholism, and indolence. These stereotypical tropes typically generate indignant protests from members of this miniscule Indian community, and debates about the representation of Anglo-Indians focus on the injustices propagated by such stereotypes. This paper rethinks Anglo-Indian representation in cinema by drawing on Jacques Rancière’s concept of ‘the distribution of the sensible,’ which provides a cartography for understanding how one’s various identity assignations structure sensory experience. In other words those who are marginalized have ways of seeing and hearing from those occupy normative or dominant subject positions, and these differences are best approached in terms of neo-Kantian aesthetic judgment. It also argues, with Rancière, that ‘inequality’ is built into the distribution of the sensible. Drawing on a number of Indian and Hollywood films — including Aparna Sen’s 36 Chowringhee Lane (1981) Anjan Dutt’s Bada Din (1998) Ismail Merchant’s Cotton Mary (2000), Bow Barracks Forever (2004) and Harry McClure’s Going Away (2013) — the paper contends that Rancière’s ‘distribution of the sensible’ allows us to think through a politics that is connected to ‘aesthetic judgement’ as well as a politics of differentiation that informs our understanding of the function of minoritarian characters in narrative cinema.

Viewing The Biggest Loser : modes of reception and reflexivity among obese people

This article builds on previous reception research and scholarship on makeover TV through an analysis of obese people's views of The Biggest Loser (TBL). TBL involves obese people competing to lose weight as personal trainers push them through dietary and physical activity regimes. We articulate four themes characterizing responses to TBL: “That's not reality,” “Public ownership and judgment of the fat body,” “The lure of the transformation,” and “A guilty pleasure.” We consider how these themes are reflected in participants' movement between mediated, discursive, transparent, and referential modes of reception. While some were adamant in their rejection of the program, others were ambivalent in accepting and identifying with the desire for weight loss but questioning TBL's aesthetic dimensions and moralizing undertones. We argue that the reflexivity of viewers complicates appraisals of TBL as governing at a distance and offer some alternative readings of the impact and appeal of the program.

Sober assessment of the link between substance abuse and crime-eliminating drug and alcohol use from the sentencing calculus

The relevance of drug and alcohol involvement to sentencing law and practice is one of the most perplexing and unsettled areas of sentencing law and practice.1 It is also one of the most important issues in the criminal justice system. Most crimes are committed by offenders who are substance involved, and nearly half of all crimes that are committed are done so by offenders who are intoxicated at the time of the offense. Substance involved individuals are grossly over-represented in the criminal courts. Addiction and intoxication impair sound judgment, and hence, it intuitively appears that intoxicated offenders are less culpable for their crimes. Moreover, there is often a sense that addiction and intoxication causes aberrant behavior and that curing the substance involvement will lead to more prudent (law-abiding) conduct.