Forfeiture Provisions and the Criminal/Civil Divide

2012 ◽  
Vol 15 (1) ◽  
pp. 32-67 ◽  
Author(s):  
Anthony Davidson Gray
Keyword(s):  
United States ◽  
United Kingdom ◽  
Due Process ◽  
The United States ◽  
Fair Trial ◽  
Presumption Of Innocence ◽  
Bill Of Rights ◽  
Middle Ground ◽  
Australian Government ◽  
Historical Basis

The Australian Government has recently implemented civil forfeiture provisions for property suspected to have been acquired unlawfully. The Australian Federal Police may seek a preliminary unexplained wealth order. The Court may make such an order if there is evidence the wealth may have been acquired from unlawful means. Once the order is made, a full hearing takes place. There it is presumed that such property was unlawfully gained, unless the person who owns the property can show otherwise. Such proceedings can take place without the property owner being charged. The article considers the historical basis of such orders, and their use in the United States and United Kingdom. It is argued that such proceedings are in fact criminal in nature, despite how they are labelled. The article engages with the discusssion in the larger context of the divide between criminal and civil, and whether some “middle ground” should be acknowledged. If forfeiture provisions are in substance criminal, perhaps due process obligations apply, including the presumption of innocence. This argument is more difficult in Australia, given the lack of an express bill of rights. However, it can be argued from previous cases that there is an implicit right to a fair trial, including a presumption of innocence.

International Immunities in English Law

2019 ◽  
pp. 643-663
Author(s):  
Philippa Webb
Keyword(s):  
United States ◽  
United Kingdom ◽  
International Organizations ◽  
The United States ◽  
The Other ◽  
Middle Ground ◽  
Incremental Development ◽  
State Immunity ◽  
The North ◽  
The United Kingdom

This chapter sets out the approach of the courts of England and Wales (English courts) to the immunities of states, foreign officials, and international organizations. It discusses similarities with and differences from other jurisdictions, with a focus on the United States as the other key influence in the development of the restrictive doctrine of state immunity. The United Kingdom has engaged in incremental development of the law on immunity as compared to the more sui generis developments in the North America and the activist approach driven by domestic constitutional norms or universal jurisdiction legislation in continental Europe. The United Kingdom State Immunity Act, underpinned by four decades of interpretation and practice, can be said to represent a middle ground in the evolving landscape of immunity.

National Security and Constitutional Law. Précis: The Constitution in a Time of National Emergency

2009 ◽  
Vol 42 (2) ◽  
pp. 217-224 ◽  
Author(s):  
Richard A. Posner
Keyword(s):  
United States ◽  
National Security ◽  
Constitutional Law ◽  
Due Process ◽  
Well Being ◽  
The United States ◽  
Recent Book ◽  
Bill Of Rights ◽  
Starting Point ◽  
National Emergency

In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.

scholarly journals The Emperor’s New Clothes

2015 ◽  
Vol 2 (3) ◽  
pp. 385-432 ◽  
Author(s):  
Robert Schehr
Keyword(s):  
United States ◽  
Supreme Court ◽  
Due Process ◽  
United States Supreme Court ◽  
Plea Bargaining ◽  
The United States ◽  
Bill Of Rights ◽  
Criminal Cases ◽  
Homo Economicus ◽  
The Supreme Court

United States Supreme Court and jurisprudential rationalizations for the constitutionality, centrality, and finality of plea-bargaining signify intellectual dishonesty, ignorance of human behavior and decision-making, and a statesanctioned threat to personhood and liberty in the United States of America. It is the Author’s purpose to expose the imperious practice of plea-bargaining for what it is—a cynical and intellectually dishonest institutional remedy for an unwieldy judicial system that has knowingly rationalized the practice to facilitate expedient resolution of ever-increasing caseloads. In order to establish plea practice as constitutional, the Supreme Court was forced to employ a jurisprudential discourse that shifted from the due-process language found in criminal law, especially the protections afforded by the Fifth and Sixth Amendments, towards contract law where defendants personifying homo economicus are “free” to negotiate away their rights. Beginning in 1930, and again in 1970, the Supreme Court applied an entirely novel standard to the adjudication of criminal cases, and it rationalized its decision on the need for efficiency. What is at stake is nothing less than the integrity of the Constitution, the Bill of Rights, and whatever still remains of an American sense of personhood under the law. The erosion of our rights that are so intimately associated with freedom due to plea-bargaining is an unprecedented injustice that cannot continue.

International Fair Trial Guarantees

2014 ◽  
Author(s):  
David Weissbrodt
Keyword(s):  
United States ◽  
Armed Conflict ◽  
Due Process ◽  
The United States ◽  
Fair Trial ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Human Right ◽  
Military Commissions ◽  
The Right

As a fundamental human right, the right to a fair trial ensures that no one is deprived of liberty without due process of law. The scope and meaning of fair trial guarantees, especially during periods of armed conflict, has become controversial in light of the United States’ use of military commissions for the trial of ‘unprivileged enemy belligerents’. This chapter explores fair trial guarantees as articulated in international humanitarian law (IHL) and international human rights law (IHRL). It first provides an overview of the principal treaty provisions that guarantee the right to a fair trial during armed conflict before turning to the concept of a ‘regularly constituted court’ as a vital element in fair trial guarantees. It then considers derogation from fair trial guarantees under IHL and IHRL, as well as the universal application of fair trial rights. Finally, it discusses how the normative standards of the fair trial guarantees apply in the practice of military commissions established by the United States in the context of the ‘War on Terror.’

Emigrant Psychoanalysts in the USA and the FBI Archives

2004 ◽  
Vol 6 (1) ◽  
pp. 75-92 ◽  
Author(s):  
James E. Goggin
Keyword(s):  
United States ◽  
Civil Rights ◽  
National Socialism ◽  
Cultural Context ◽  
Due Process ◽  
The United States ◽  
External Threats ◽  
The Usa ◽  
The Rich ◽  
New Nation

Interest in the fate of the German psychoanalysts who had to flee Hitler's Germany and find refuge in a new nation, such as the United States, has increased. The ‘émigré research’ shows that several themes recur: (1) the theme of ‘loss’ of one's culture, homeland, language, and family; and (2) the ambiva-lent welcome these émigrés received in their new country. We describe the political-social-cultural context that existed in the United States during the 1930s, 1940s and 1950s. Documentary evidence found in the FBI files of three émigré psychoanalysts, Clara Happel, Martin Grotjahn, and Otto Fenichel, are then presented in combination with other source material. This provides a provisional impression of how each of these three individuals experienced their emigration. As such, it gives us elements of a history. The FBI documents suggest that the American atmosphere of political insecurity and fear-based ethnocentric nationalism may have reinforced their old fears of National Socialism, and contributed to their inclination to inhibit or seal off parts of them-selves and their personal histories in order to adapt to their new home and become Americanized. They abandoned the rich social, cultural, political tradition that was part of European psychoanalysis. Finally, we look at these elements of a history in order to ask a larger question about the appropriate balance between a liberal democratic government's right to protect itself from internal and external threats on the one hand, or crossover into the blatant invasion of civil rights and due process on the other.

The link between coronavirus, anxiety, and religious beliefs in the United States and United Kingdom

2020 ◽  
Author(s):  
Francesco Rigoli
Keyword(s):  
United States ◽  
United Kingdom ◽  
Religious Beliefs ◽  
Well Being ◽  
The United States ◽  
Christian Faith ◽  
Stressful Event ◽  
Cultural Implications ◽  
The Impact

Research has shown that stress impacts on people’s religious beliefs. However, several aspects of this effect remain poorly understood, for example regarding the role of prior religiosity and stress-induced anxiety. This paper explores these aspects in the context of the recent coronavirus emergency. The latter has impacted dramatically on many people’s well-being; hence it can be considered a highly stressful event. Through online questionnaires administered to UK and USA citizens professing either Christian faith or no religion, this paper examines the impact of the coronavirus crisis upon common people’s religious beliefs. We found that, following the coronavirus emergency, strong believers reported higher confidence in their religious beliefs while non-believers reported increased scepticism towards religion. Moreover, for strong believers, higher anxiety elicited by the coronavirus threat was associated with increased strengthening of religious beliefs. Conversely, for non-believers, higher anxiety elicited by the coronavirus thereat was associated with increased scepticism towards religious beliefs. These observations are consistent with the notion that stress-induced anxiety enhances support for the ideology already embraced before a stressful event occurs. This study sheds light on the psychological and cultural implications of the coronavirus crisis, which represents one of the most serious health emergencies in recent times.

The Principle of Presumption of Innocence in Criminal Proceedings and Problems of Its Implementation

2020 ◽  
pp. 86-91
Author(s):  
N. Yu. Borzunova ◽  
K. L. Maksimova ◽  
A. M. Tsechoev
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Criminal Case ◽  
Football Players ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
Plea Bargain ◽  
European Court ◽  
Theoretical Issues

The article deals with the specific features of the presumption of innocence principle and the problems of its implementation in Russia and the United States of America, as well as theoretical issues of this concept. The materials of practice reflecting violations of the principle of presumption of innocence are presented, and various opinions of legal scholars on the implementation of the principle of presumption of innocence are given. Examples from practice are analyzed, including cases that have a high public profile: the criminal case against two football players Pavel Mamaev and Alexander Kokorin, the decision of the Strasbourg European Court of human rights in the case “Fedorenko V. Russia” and the criminal case of the famous American producer Harvey Weinstein. The article analyzes the “plea bargain” that is used in the United States of America. The problems of implementing the principle of presumption of innocence and ways to solve them are outlined.

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