Sentencing Guidelines, Judicial Discretion, And Social Values

This paper studies the institutional structure of criminal sentencing, focusing on the interaction between legislatures, which set sentencing ranges ex ante, and judges, who choose actual sentences from within those ranges ex post. The key question concerns the optimal degree of judicial discretion, given the sequential nature of the process and the possibly divergent interests of legislatures and judges regarding the social function of criminal punishment. The enactment of sentencing reform in the 1970s and 80s provides both a context for the model and an opportunity to evaluate its conclusions.

Crack and powder cocaine federal legislation: A sentencing disparity and potential for policy improvement

Since its introduction into the United States in the 1980s, crack cocaine has been a harsh epidemic that has taken its toll on a countless number of people. This highly addictive, cheap and readily available drug of abuse has permeated many demographic sectors, mostly in low income, lesser educated, and urban communities. This epidemic of crack cocaine use in inner city areas across the Unites States has been described as an expression of economic marginality and “social suffering” coupled with the local and international forces of drug market economies (Agar 2003). As crack cocaine is a derivative of cocaine, it utilizes the psychoactive component of the drug, but delivers it in a much stronger, quicker, and more addictive fashion. This, coupled with its ready availability and cheap price has allowed for users to not only become very addicted very quickly, but to be subject to the stringent and sometimes unequal or inconsistent punishments for possession and distribution of crack-cocaine. ^ There are many public health and social ramifications from the abuse of crack-cocaine, and these epidemics appear to target low income and minority groups. Public health issues relating to the physical, mental, and economic strain will be addressed, as well as the direct and indirect effects of the punishments that come as a result of the disparity in penalties for cocaine and crack-cocaine possession and distribution. ^ Three new policies have recently been introduced into the United Stated Congress that actively address the disparity in sentencing for drug and criminal activities. They are, (1) Powder-Crack Cocaine Penalty Equalization Act of 2009, (HR 18, 111th Cong. 2009), (2) The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009, (HR 265, 111th Cong. 2009) and (3) The Justice Integrity Act of 2009, (111th Cong. 2009). ^ Although they have only been initiated, if passed, they have potential to not only eliminate the crack-cocaine disparity, but to enact laws that help those affected by this epidemic. The final and overarching goal of this paper is to analyze and ultimately choose the ideal policy that would not only eliminate the cocaine and crack disparity regardless of current or future state statutes, but will provide the best method of rehabilitation, prevention, and justice. ^

How should Australia regulate voluntary euthanasia and assisted suicide?

The purpose of this paper is to provide a basis from which to start an informed and rational dialogue in Australia about voluntary euthanasia (VE) and assisted suicide (AS). It does this by seeking to chart the broad landscape of issues that can be raised as relevant to how this conduct should be regulated by the law. It is not our purpose to persuade. Rather, we have attempted to address the issues as neutrally as possible and to canvass both sides of the argument in an even-handed manner. We hope that this exercise places the reader in a position to consider the question posed by this paper: How should Australia regulate voluntary euthanasia and assisted suicide? In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation. We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful. There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered. The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus. We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues. If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice. We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?

Factores explicativos de las actitudes hacia el castigo juvenil. Evidencias de un diseño factorial

El rol desempeñado por la opinión pública en el desarrollo de la política criminal actual justifica el incremento de investigaciones destinadas a evaluar las actitudes de los ciudadanos hacia el castigo. No obstante, los avances en este ámbito han sido limitados debido a la utilización de rudimentarios instrumentos de medida. Por ello, el presente trabajo tiene como propósito explorar el efecto que generan en la opinión ciudadana ciertas variables referidas al hecho delictivo y al infractor, precisando su contribución relativa y la interacción existente entre ellas. Para satisfacer este objetivo se recurrió a un diseño factorial de la encuesta, creando una población de 256 casos-escenario fruto de la combinación de cuatro factores: la edad del joven, su historial delictivo, el grado de implicación en el hecho y el tipo de delito cometido. Los mismos fueron distribuidos en grupos de ocho casos ordenados aleatoriamente y fueron suministrados a 32 sujetos. Posteriormente se aplicaron análisis de regresión logística binaria. Los resultados obtenidos revelan que la naturaleza violenta de los hechos, la implicación activa de los jóvenes y el historial delictivo son predictores importantes de las condenas punitivas. Sin embargo la edad, una variable fundamental en la configuración de la justicia juvenil, no resulta significativa. De este modo, el trabajo muestra el potencial explicativo de este conjunto de factores y debate sus implicaciones teóricas y metodológicas para la investigación futura en este terreno.

Making the fun stop : youth justice reform in Queensland

In 2013 the newly elected conservative Liberal National Party government instigated amendments to the Youth Justice Act 1992 (Qld). Boot camps replaced court ordered youth justice conferencing. In 2014 there were more drastic changes, including opening the Children’s Court proceedings to the public, permitting publication of identifying information of repeat offenders, removing the principle of ‘detention as a last resort’, facilitating prompt transferral of 17 year olds to adult prisons and instigating new bail offences and mandatory boot camp orders for recidivist motor vehicle offenders in Townsville. This article compares these amendments to the legislative frameworks in other jurisdictions and current social research. It argues that these amendments are out of step with national and international best practice benchmarks for youth justice. Early indications are that Indigenous children are now experiencing increased rates of unsentenced remand. The article argues that the government’s policy initiatives are resulting in negative outcomes and that early and extensive evaluations of these changes are essential.

Traps for the unwary : reform stories of private sector managers entering public service

The purpose of this research is to capture and interpret the stories of “outsider” managers who make the transition to the public sector. These experiences are considered in the context of efforts to shift public management culture in a direction consistent with meeting contemporary demands placed on public sector organisations. It is often noted that an important strategy for changing culture is the infusion of outsiders. Outsiders are thought to bring new perspectives that, through a dialectical process (Van de Ven 1995), create the potential for change. While there have been cross-sector comparisons (Broussine 1990; Silfvast 1994; Redman 1997), little attention has been given to the experience of those who make the transition in the context of efforts to reform public sector management culture. Not only is the infusion of private sector managers into the public sector a potential culture change strategy, it is also a personal experience for those who make the transition. Boundary crossing is typically an anxiety provoking experience (Van Maanen & Schein 1979) and the quality of this experience influences decisions to commit, engage, disengage or exit. The quality of the experience is likely to be affected by how the public organisation responds to people making this transition, that is, their investment in people processing (Saks 2007). The cost of recruitment and selection processes at middle and senior management levels warrants a greater research focus on this transition. In this paper we argue that the experiences of those who make the transition from private to public sectors has much to tell us about the traps that transition managers experience in making this change, the implications for injecting outsider managers as a strategy for achieving public management culture change, and how reform-oriented public organisations can manage the transitions of outsider managers into the public sector in order that best value might be achieved for both the individual and organisational change goals.

Commercialisation of regenerative human tissue : Regulation and reform in Australia and England, Wales and Northern Ireland

The commercialisation of therapeutic products containing regenerative human tissue is regulated by the common law, statute and ethical guidelines in Australia and England, Wales and Northern Ireland. This article examines the regulatory regimes in these jurisdictions and considers whether reform is required to both support scientific research and ensure conformity with modern social views on medical research and the use of human tissue. The authors consider the crucial role of informed consent in striking the balance between the interests of researchers and the interests of the public.

Sentencing Indigenous and Non-Indigenous Women in Western Australia’s Higher Courts

This article presents results from an exploratory study seeking to examine the role of sentencing in the continuing overrepresentation of Indigenous women in Western Australia’s prisons. Sentencing data from Western Australia’s higher courts indicate that Indigenous women were less likely than non-Indigenous women to be sentenced to a term of imprisonment when appearing before the court for comparable offending behaviour and histories.

Assessment and curriculum reform in China : the college English test and tertiary English as a foreign language education.

Educational assessment was a worldwide commonplace practice in the last century. With the theoretical underpinnings of education shifting from behaviourism and social efficiency to constructivism and cognitive theories in the past two decades, the assessment theories and practices show a widespread changing movement. The emergent assessment paradigm, with a futurist perspective, indicates a deviation away from the prevailing large scale high-stakes standardised testing and an inclination towards classroom-based formative assessment. Innovations and reforms initiated in attempts to achieve better education outcomes for a sustainable future via more developed learning and assessment theories have included the 2007 College English Reform Program (CERP) in Chinese higher education context. This paper focuses on the College English Test (CET) - the national English as a Foreign Language (EFL) testing system for non-English majors at tertiary level in China. It seeks to explore the roles that the CET played in the past two College English curriculum reforms, and the new role that testing and assessment assumed in the newly launched reform. The paper holds that the CET was operationalised to uplift the standards. However, the extended use of this standardised testing system brings constraints as well as negative washback effects on the tertiary EFL education. Therefore in the newly launched reform -CERP, a new assessment model which combines summative and formative assessment approaches is proposed. The testing and assessment, assumed a new role - to engender desirable education outcomes. The question asked is: will the mixed approach to formative and summative assessment provide the intended cure to the agony that tertiary EFL education in China has long been suffering - spending much time, yet achieving little effects? The paper reports the progresses and challenges as informed by the available research literature, yet asserts a lot needs to be explored on the potential of the assessment mix in this examination tradition deep-rooted and examination-obsessed society.

Aligning school reform and teacher education reform in the middle years : an Australian case study

This paper discusses the development of a new Bachelor of Education (Middle Years of Schooling) at The University of Queensland, Australia. The middle years of schooling have increasingly been the focus of education reform initiatives in Australia, but this has not been accompanied by significant increases in the number of teacher education institutions offering specialised middle schooling-level teacher preparation programmes. Considering the rapidly changing social and economic context and the emergent state of middle schooling in Australia, the programme represented a conceptual and practical opportunity and challenge for The University of Queensland team. Working collaboratively, the team sought to design a teacher education preservice programme that was both responsive and generative: that is, responsive to local school contexts and to current education research and reform at national and international levels; and generative of cutting-edge theories and practices associated with middle schooling, teachers' work, and teacher education. This paper focuses on one component of the Middle Years of Schooling Teacher Education programme at The University of Queensland; namely, the practicum. We first present the underlying principles of the practicum programme and then examine "dilemmas" that emerged early in the practicum. These issues and tensions were associated with the ideals of "middle years" philosophy and the pragmatics of school reform associated with that approach. Within this context, we explore what it means to be both responsive and generative, and describe how we as teacher educators negotiated the extremes these terms implied.

High quality/high equity systems of education: Curriculum, teachers and reform in the search for equitable outcomes for all students

The issue of what an effective high quality / high equity education system might look like remains contested. Indeed there is more educational commentary on those systems that do not achieve this goal (see for example Luke & Woods, 2009 for a detailed review of the No Child Left Behind policy initiatives put forward in the United States under the Bush Administration) than there is detailed consideration of what such a system might enact and represent. A long held critique of socio cultural and critical perspectives in education has been their focus on deconstruction to the supposed detriment of reconstructive work. This critique is less warranted in recent times based on work in the field, especially the plethora of qualitative research focusing on case studies of ‘best practice’. However it certainly remains the case that there is more work to be done in investigating the characteristics of a socially just system. This issue of Point and Counterpoint aims to progress such a discussion. Several of the authors call for a reconfiguration of the use of large scale comparative assessment measures and all suggest new ways of thinking about quality and equity for school systems. Each of the papers tackles different aspects of the problematic of how to achieve high equity without compromising quality within a large education system. They each take a reconstructive focus, highlighting ways forward for education systems in Australia and beyond. While each paper investigates different aspects of the issue, the clearly stated objective of seeking to delineate and articulate characteristics of socially just education is consistent throughout the issue.

An evaluation framework for educational reform projects for teacher quality improvements in developing countries : a case study of Egyptian education reform

The role of the evaluation for Official Development Assistance (ODA) enterprises including educational development has become critical after increasing “aid fatigue” experienced by the international community in the 1990s. To date, however, monitoring and evaluating outcomes of the projects has been limited to the project life. Consequently these have been mainly through the international aid agencies. Furthermore, the monitoring and evaluation led by international aid agencies have paid little attention to aspects of the sustainability of technical cooperation in educational development. To sustain the impact of technical cooperation, the reinforcement of evaluation has drawn increasing attention in light of the emerging modalities in international development. Therefore this research was inspired to investigate alternative evaluation frameworks for an educational reform project for teacher quality improvement that may increase possibilities for long term sustainability. Importantly, the new modalities in international development and educational issues provide new options. In addition, the research reviewed theoretical and practical issues surrounding evaluation in general, and highlighted the evaluation of education reform projects. The research reported explored via case studies, the evaluation processes employed by the Egyptian education reform projects implemented by the Japan International Cooperation Agency (JICA) and the United Nations Children’s Fund (UNICEF). The case studies used three data sources (archival and relevant documents, a survey questionnaire and interviews) to illuminate the contextually-embedded evaluation processes. The research found that process evaluation is a potential alternative method since it is likely to be locally institutionalised, which may yield long-term sustainability of the projects.