Political Ideology and the Judicial Process The Resurrection of (original) (raw)
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Political trials and the social construction of deviance
Qualitative Sociology, 1984
In the 1960s and early" 1970s deviance research, especially in the labeling perspective, was concerned with the question of how individuals or groups become defined as deviant. Since then, the political analysis of deviance has come to ask the more fundamental question of how deviance becomes constructed through political processes. A political trial is one particularly transparent situation in which narrower political processes for imputing deviance elicit more fundamental interpretations of political modes of deviance construction. In order to explore the workings of the deviance construction process, the present study examines the two defense strategies employed on behalf of the defendants in the trial of the Chicago 15, a group of thirteen men and two women who destroyed selective service files on the south side of Chicago in May, 1969. The first strategy is the previously studied "motivation defense," wherein the moral righteousness of the defendants' purpose is pleaded as cause for their exculpation. The second is the unique "cultural insanity defense," which asserts t h a t the defendants were so profoundly deluded in their moral indictment of the government that the jury should return a verdict of culturally insane rather than criminally guilty. The first section of the paper summarizes the circumstances of the trial. The second and third sections analyze each of the two defense strategies, focusing on their legal and political logic and on the prosecution counter-strategies they engendered. The final section indicates a number of theoretical implications for the further development of the political model of political trials and of deviance construction in society at large.
Law and Critique, 2021
Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Dr...
Punishing Political Offenders: The Effect of Political Motive on Federal Sentencing Decisions*
Criminology, 1996
Although political motive is frequently avoided as an issue in the prosecution of terrorists, previous research indicates that these offenders consistently receive longer sentences than nonterrorists convicted of similar offenses (Smith, 1994). This study assesses the ability of three theoretical models (consensus, conflict, and structural-contextual) to explain these differences in sentencing patterns. Data on terrorists (N = 95), provided by the Federal Bureau of Investigation, the Administrative Ofice of the U.S. Courts, and the U.S. Sentencing Commission, is matched with data on a sample of similarly convicted nonterrorists from the Federal Court Cases Integrated Data Base, 1970-1991 (N = 403). Controlling for a number of demographic and sentencing-related variables, the results indicate that the oficial label of "terrorist" is not only a significant predictor of sentence length, but emerges as the dominant explanatory variable in the analysis. The results provide general support for both consensus and conflict hypotheses, but only partial support for structural-contextual theory. The findings also raise procedural questions regarding the extensive variation in sentencing between similarly situated defendants when political motive is used as a primary criterion for sentence enhancements.
Law and Critique, 2022
The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe's agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decisionmaking. Mouffe's concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature-juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of ongoing collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a 'relative sovereignty', being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not 'apply itself' on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe's theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.