ࡱ> pro ~bjbj .||L+>>8<y$:  #######$&(<#E#3$h##:"t"! g" #I$0y$"R))")"##y$)> ^: Sentencing & Penal Decision-Making European Working Group  HYPERLINK "http://www.strath.ac.uk/sentencingeurope" www.strath.ac.uk/sentencingeurope The Role of Emotion in the Sentencing and Penal Decision-Making Process Symposium Thursday 20 - Friday 21 May 2015 Kindly Hosted by: Kindly Hosted by: the  HYPERLINK "http://www.upf.edu/criminologia/en/" Research Group in Criminology and Criminal Justice, Faculty of Law, Universitat Pompeu Fabra, Barcelona Venue: Venue: Room 40043 Edificio Roger de Llria Campus Ciutadella. UPF)  HYPERLINK "http://www.upf.edu/campus/ciutadella/" http://www.upf.edu/campus/ciutadella/ (Building No. 40) Abstracts The Emotion Work of Judicial Objectivity Stina Bergman Blix Stockholm University, Sweden sa Wettergren University of Gothenburg, Sweden The preliminary investigation in the Swedish court process is inquisitorial, but the trial is accusatorial, opening up for ambivalence with regards to objectivity. In spite of this, an idea of law as objective in the positivist sense, as well as unemotional, lingers. In contrast, we argue that emotions are necessary for the efficient performance of the legal process and that sustaining objectivity relies on skilled professional emotion work such as: 1) Reorientation of emotion; 2) Ritual and encoded distance; 3) Balancing of emotional display; 4) Aesthetic pleasure/pride in judicial simplicity and procedural correctness. The data consists of qualitative interviews and observations, including shadowing, at four Swedish district courts and corresponding prosecution offices. For both the judge and the prosecutor objectivity is vital, but in different ways. The emotion work underlying successful objective performance of the judge includes balanced attunement with the situated interactions in court and; tacit collaboration with prosecutors and defense lawyers to uphold an impartial presentation and to gain decision material. The prosecutors, on the other hand, takes pride in maintaining objectivity in spite of being partial. Prosecutors juggle contradictory organisational and legal demands; are attentive to and cover for the defendants rights during trial; and represent the objective party when both defendant and injured party resist prosecution. Finally, prosecutors often go to court with colleagues cases requiring delicacy when the evidence turns out weak. The prosecutors objectivity can in these cases rely on the tacit understanding of the judge to pick up signals that a defendant ought to be acquitted/sentenced more mildly than pleaded. Key words: Emotions, emotion work, objectivity, Swedish courts, court professionals Feeling the Difference: how care ethics can help us make sense of emotional and rational information to better recognize and respect offenders as real people in criminal sentencing and punishment. Helen Coverdale London School of Economics & Political Science, England Emotional and rational information about persons is necessarily deeply intertwined as we are both rational and emotional beings. Trying to understand, and respect, the whole person without one of these forms of information is like trying to make sense of a page of text, where some characters have been obscured. How can sentencers better understand and use emotional information, and what role emotional information should have in sentencing, are related questions. This paper considers what is at stake when emotional information is excluded, why this is important, how care ethics can help us include and employ both emotional and rational information, and how this might be useful. Emotional information is part of broader contextual information which helps us to understand each person as they appear in their social context, to see them as real people and not as abstractions. This is helpful for understanding offenders as real people, since it is the particular offender in each unique case who is punished. Both offending and punishment are particular, situated interactions involving individual offenders. Yet we often conceptualize sentencing and punishment in the abstract, and of course policies and guidelines are necessarily drawn up without reference to any particular case. Legal processes in both common and civil law jurisdictions value this broader information about offenders, for providing context to the offence and punishment. Yet there are problems with how this information is gathered, and it has been the case that this information has been gathered in a way which excludes and objectifies the offender. In addition to understanding offenders context, emotional information is also important for achieving interactional justice, an element of procedural justice which also facilitates compliance. Interactional justice is the process of being treated fairly, with dignity and respect, and being heard as a person with equally valuable knowledge. This feeling, an emotional property, of appropriate treatments may also be particularly useful in therapeutic and problem-solving jurisprudence settings which seek to include and empower offenders, and may potentially help to facilitate offender-led desistance. Care ethics provides a framework to help us consider and include both emotional and rational information. With a different informational basis, in Amartya Sens terms, we do not exclude emotional information as irrelevant, and include it on an equal basis with factual information. As a relational perspective heavily tied to practice, care ethics drives us to seek contextual information including emotional information, and for treating others, including offenders, with respectfully and responsively. Finally care ethics offers as a mode of practical moral reasoning, or a method, for trying to include both emotional and rational information to help include offenders as equals and protect them from some unavoidable harms. This raises new challenges about how we can protect offenders from the misuse of information gathered to provide a deeper understanding of the offender as a whole person. Impressed by Feelings: How judges gain knowledge of defendants through emotions in Danish courtrooms Louise Victoria Johansen Centre for Legal Cultural Studies, Faculty of Law, University of Cophenhagen, Denmark Emotions constitute an integrated and inseparable part of any criminal case, but the evaluation and acceptance of these emotions is dependent on a norm rarely defined in the context of courtrooms. Although existing research has analyzed written verdicts and their reference to emotions such as remorse, we know relatively little about how judges themselves relate to these emotional expressions in their daily work routines. This paper presents an anthropological, empirical study of Danish judges considerations when they communicate with defendants and get an impression of their behavior, emotional state and physical appearance. These elements are only ambivalently embraced by the court, but they nevertheless provide judges with important signals about the risk of recidivism and possible sanctions. Combining theories about emotions with intersectionality approaches that take into account the body and social positioning, the paper draws attention to the processes in which social categories are also dynamically shaped through emotions. Judges impressions thus constitute positioned knowledge interfaces for the acceptance or rejection of emotions according to implied and unarticulated norms. Emotional Justice beyond the Courts? Facilitating participant satisfaction and emotional understanding within English Neighbourhood Justice Panels (NJP). Max Lowenstein Bournemouth University, England Neighbourhood Justice Panels (NJPs) are local justice initiative that attempt to resolve adult (18+) very low level crimes and civil disputes (often deemed too low to be referred to the English Magistrate Courts). In Dorset, they are facilitated by independent and local community volunteers (facilitators) via the police and a NJP liaison coordinator who refers genuinely remorseful cases to them. They provide a flexible out of court option whereby remorse and harm can be discussed in a more informal and private setting. Involved parties agree to be brought together in a structured and protective environment both physically and emotionally in order to gain a better understanding of each other. The contractual solutions agreed (apology, compensation) resulting from this process matter and can form part of the formal offenders sentence later on if the matter escalates and goes to court, enhancing local participation in local justice. This research qualitatively evaluates how and why a high satisfaction rate (85%) and high emotional understanding (82%) has been previously noted in Dorset from a brief participant survey. The research methodology (Kvale, S. 1996) involves in-depth interviews with 25 involved participants (9 facilitators, 8 victims, 8 offenders). Facilitators will be the primary focus of this paper as they must prepare for and manage often complex and intense emotions within 1 hour meetings with follow up correspondence afterwards. These meetings include victim and offender perspectives and often include these participants supporters, which offer additional emotional perspectives regarding remorse and harm. This complicated task which is given to facilitators is supported via regular meetings with the NJP liaison coordinator and 3 days of formal facilitator training, quality approved by the Restorative Justice Council, London. This research will provide new data from facilitators for discussion on; 1) Emotional labours involved within NJP processes from preparation, meeting and outcomes follow up. In other words, how and why a high NJP participant satisfaction and emotional understanding is being achieved. 2) Provide recommendations from the shared facilitator perceptions regarding satisfaction and emotional understanding best practice in the future. The latter in particular is in demand as NJP schemes are being expanded across policing areas within England arguably as an effective (low cost) community resolution model option. In particular, data on how best to ensure NJP resolutions have a positive long term impact is limited in the prevailing English NJP literature. By discussing and sharing such new data, it is hoped that more research will be encouraged regarding NJPs (or similar community resolution models across the EU and beyond). It is also hoped that the resulting discussion will encourage careful comparisons to be made with community resolution models beyond England and for higher seriousness level crimes (such as sexual violence cases in Wanganui, New Zealand) which are deemed referable beyond the Courts. Concealment of birth a crime or an emotional reaction to women who do not conform? Emma Milne University of Essex, England Concealment of birth is committed when a person conceals the body of a dead newborn child in order to conceal the birth of said child. The offence is not concerned with how the child died, but rather that the birth happened in secret. When first written into law in 1803 the offence acted as an alternative to murder when evidence of cause of death could not be proven. The principle behind the law was that it was difficult, if not impossible, to prove that a child had been born alive and without this evidence a murder conviction could not be made. Initially the law only applied to unwed women and their illegitimate children. The offence can now be committed by any person, as enacted by the Offences Against the Person Act 1861 (24 and 25 Vict, c.100, s.60). Today pathologists are able to determine if a child was born alive and the cause of death, and so prosecutors do not face the same challenges of determining murder as they did in the 1800s. It is not a crime to conceal a pregnancy, nor is it an offence to give birth alone without medical help. Considering this, my research is asking what is actually being punishing today. Other more appropriate offences operate in English and Welsh criminal law, such as preventing a burial or obstructing a coroner from holding an inquest. Use of these offences would admonish behaviour which is seen to be preventing justice from being administered. In this paper I will argue that continued use of this offence is representative of the emotional response by the public and, in turn, the criminal justice system, when women do not conform to the idealised image of the expectant mother. I will present examples of cases from England and Wales over the last five years to illustrate how emotions, such as horror and disgust, creep into the criminal justice system which believes itself to operate based on facts rather than feeling. The consequence is that women are being punished because their actions have violated gender norms and challenged the idealised image of motherhood. Criminal Court Games: Judges Concealed emotions Dragan Petrovec Institute of Criminology, Faculty of Law, University of Ljubljani, Slovenia Vrh obrazca Reading and thinking about the crime always engage plenty of readers emotions. Mass media always take advantage of it. Therefore, it happens that public opinion often advocates harsher penalties, while politicians have the motivation and power to fulfil expectations. These are the conditions in the general level of crime policy. At the individual level, we are faced with the (emotional) responses of individual judges when imposing sentences to criminals. It is very difficult to determine what emotions prevail in individual cases. Judges mostly deny the impact of emotions, as it would appear contrary to the fair trial. However, the influence of emotions cannot be avoided, but it is very difficult to measure. For about twenty years I have been involved in postgraduate education of future judges. In a form of "court games we are dealing with real cases that occurred decades ago, so that participants do not know of the sentence imposed. These selected cases always arouse strong emotions. After the presentation of all the circumstances the participants anonymously write down on a piece of paper a penalty they chose. In spite of the fact that they are all lawyers who are familiar with criminal law, the results are without exception very different. Imposed penalties range from conditional sentence to the thirty years of imprisonment. Questions, if they could identify their emotions as they felt during describing the case and the imposition of sanctions, mostly remain without answer. It seems that they are embarrassed as we are generally not used to talk about emotions, especially not about the judge's feelings in the process of trial. Such training should have an additional questionnaire about feelings (Slovenian Psychological Association has a questionnaire MCD - My Feelings Towards - that could be adapted for this purpose). Thus, a valuable information could be given to judges (by a qualified psychologist) on the part of their personality that we all hide somehow, although it has a strong influence on our decisions. How Criminal Procedure Shapes Professionals' Emotions and Attitudes Mojca Plesni ar Institute of Criminology, Faculty of Law, University of Ljubljani, Slovenia I will be exploring the question of context and how professionals as individuals are affected by it in criminal proceedings based on the example of the changing nature of criminal procedure in Slovenia. The system has in the past decades been slowly transitioning from a mixed (inquisitorial) system towards a more adversarial system. Especially recent changes introducing plea bargaining seem to have had an important impact on the way professionals, particularly judges and prosecutors, view their role in the proceeding. My hypothesis is that the adversarial nature of the proceeding changes the way prosecutors and judges perceive their respective roles. While the principle of finding material truth was the main notion for judges before, they are now less engaged and feel less responsible for the outcome of the trial as the will expressed by the parties has become more important. For prosecutors, who earlier in the system acted as guardians of the law, things have changed radically with their positioning as just a party in the system and their motivation and emotions underlying it have changed too. It would be interesting to compare how this relates to systems, where the adversarial nature of the procedure has been a feature for a longer period of time as perhaps it's the notion of changes that makes most difference and not the way in which changes are made. The Emotional Dimension of Decision-Making Research Cold Scientists or emotional human beings? Veerle Scheirs Vrije Universiteit Brussel, Belgium We are not cold scientists, but vulnerable humans who suffered, had doubts, and made mistakes (Kleinman & Copp, 1993: 18). Doing qualitative research in general, and ethnographic research in particular, engenders an emotional impact on the research subject(s) as well as on the researcher. However, literature on sentencing and penal decision-making often ignores the emotional dimension and impact of the study on the researcher. Nevertheless, emotional encounters in the field appear to be unavoidable. As a result, in this paper, I reflect on the emotional challenges I faced during my own research studying the decision-making processes and practices of the Belgian sentence implementation courts. I will explain how emotions and feelings can play an important role in gathering and analysing data and plead for the acknowlegdement and integration of emotional encounters as a source of date and/or as a full subject and product of research. This paper therefore aims at (re-)opening the debate on this topic by explicitly focussing on the lived experiences of doing research on penal decision-making and expressing the feelings of frustration, ambivalence, isolation and uncertainty I faced during the research process. Emotional Judges? Katja ugman Stubbs Faculty of Law, University of Ljubljani, Slovenia The mainstream approach to understanding the ideal relationship between the rational and emotional responses of the criminal judge stems from the belief that emotions are a hindrance to just and rational decision-making and there is no place for them in criminal process. Emotions should be suppressed by the judge or, this not being possible, their influence should be minimized. The author presents just the opposite view on the role of emotions in the judicial process: she claims that emotions have an important role to play in it. Even more: in her opinion emotions can improve the judicial process overseen by an emotionally conscious and emotionally intelligent judge. Based on the work of Milivojevi and T. Maroney the author claims that emotions always have an internal logic which can help a judge understand his/her internal dynamics and improve judicial process. Secondly, the auth<=st  " # էn\J8#h h"5CJOJQJ^JaJ#h h"CJOJQJ\^JaJ#hi hi CJOJQJ\^JaJ h"5CJ OJQJ\^JaJ &h h"5CJ OJQJ\^JaJ &h h"5CJOJQJ\^JaJ2h h"5>*B*CJOJQJ\^JaJph&h h"5CJOJQJ\^JaJ/jh h"5CJOJQJU\^JaJ#h h"5CJ$OJQJ^JaJ$$<  # 9!7]7gd P8$ 9!7]7a$gdwN$ 9!7]7a$gd $ 9!7d]7a$gd P8$ 9!7d]7a$gd P8m$$ 9!7]7a$gd P8m$# 9 : k l m  ! 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