One perspective on sentencing reform in the United States

Summary and Conclusion The most difficult part of constructing a system of criminal sentencing is to be able to give a rationale for each sentence. Historically, this has been an unsurmountable hurdle because it required reformers to resolve the irresolvable conflict between utility and desert as sentencing goals and to measure the immeasurably complex relative utility of the alterative utilitarian strategies of deterrence, incapacitation, and rehabilitation. The good news is that we need not try to leap these insurmountable hurdles: the greatest utility is found in a desert distribution of liability and punishment. By following desert, the criminal law can establish its moral credibility with the public and thereby harness the real sources of social control—the power of social sanctions and internalized norms. In the context of criminal sentencing, this means the system must establish a reputation for giving offenders the precise amount of punishment they deserve. Despite the utilitarian importance of desert, however, nondesert concerns can govern the selection of the sanctioning method. As long as the total punitive bite of all aspects of an offender’s sentence is what the offender deserves, judges otherwise can be left free to construct the sentence they think will best avoid future crime. With a system of punishment units and punishment equivalencies, a desert-based determination of the amount of punishment can co-exist with a selection of sanctioning methods looking to nondesert, utilitarian considerations, such as the need for deterrence, incapacitation, and rehabilitation. This essay is based upon lectures given at the United Nations Asia and Far East Institute (UNAFEI) for the Prevention of Crime and the Treatment of Offenders in Fuchu, Tokyo, Japan. B.S., Rensselaer Polytechnic Institute 1970; LL.M., Harvard University 1975; J.D., University of California-Los Angeles 1973; Dip. Leg. Stud., Cambridge University 1976.     

Attitudes Toward Electronic Monitoring: An Exploratory Analysis Among Criminal Justice Students in Bosnia and Herzegovina

The purpose of this research study is to examine attitudes associated with the use of electronic monitoring as a criminal justice sanction in Bosnia and Herzegovina. Utilizing self-reported survey data from 57 graduate students enrolled in a criminal justice policy based course at the University of Sarajevo, students’ attitudes toward electronic monitoring are assessed. Specifically, students’ personal views about whether electronic monitoring meets the sentencing goals of deterrence, incapacitation, retribution, rehabilitation and reintegration are evaluated. Perceptions of the cost-effectiveness of electronic monitoring and the appropriateness of electronic monitoring as a sentence for specific offender types are also examined. Finally, the influence of student socio-demographic characteristics on opinions are also assessed. As a whole, students surveyed appear to support the use of electronic monitoring for juvenile offenders and offenders awaiting trial. Additionally, respondents do not view the conditions associated with electronic monitoring as all that negative or obtrusive. Implications from these findings, as well as limitations and suggestions for further research are discussed.     

Punishment justifications in rape cases: a community study

Norway is one of the countries with the most progressive criminal justice systems in the Western world. Traditionally, the Norwegian criminal justice system has been mainly based on treatment and deterrence perspectives. While it is believed that criminal justice practices should be in accordance with public attitudes, few studies in Scandinavia have investigated public attitudes towards criminal justice sanctions in a methodologically sound manner. The current study is the first to investigate the attitudes of the Norwegian public towards punishment of rapists. In a Norwegian community sample (N = 475) from 2005, participants found the typical sentencing severity of a convicted rapist too lenient. The participants did report that as a global sentencing orientation, they preferred incapacitation. When presented with a specific rape case, their sentencing judgements were oriented towards both incapacitation and retribution, but their global orientation were not related to their specific judgements. Aggravating circumstances (e.g. violence was used) were found to influence the participants’ judgements more than when no aggravating circumstances were present (e.g. no violence was used). Few gender or educational differences were found, which indicates that these attitudes towards punishment of rapists are quite consistent across demographical groups.     

Reactions to Mandatory Sentences in Relation to the Ethnic Identity and Criminal History of the Offender

This study investigated the responses of 181 participants (87 men, 94 women), from Adelaide, South Australia, to scenarios describing mandatory sentences for perpetrators of a property offense committed in the Northern Territory, Australia. Four scenarios that were randomly distributed varied ethnic identity (White Australian, Aboriginal Australian) and criminal history (first-time offender, third-time offender). Participants completed attitude measures for both mandatory sentencing and capital punishment, a right-wing authoritarianism scale, and a scale concerned with sentencing goals (retribution, deterrence, protection of society, and rehabilitation). Results showed strong effects of attitude toward mandatory sentencing on scenario responses for variables such as perceived responsibility, deservingness, leniency, seriousness, anger and pleasure, and weaker effects of ethnic identity and criminal history. Participants were generally more sympathetic when the offender was an Aboriginal Australian. Results of a multiple regression analysis showed that attitude toward mandatory sentence was predicted by right-wing authoritarianism and by sentencing goals relating to deterrence and the protection of society.     

Sources of judicial attitudes toward criminal sanctioning

Through a 1979 survey of 89 Illinois judges, the present study attempts to assess how various social, political, and occupational factors influence judicial attitudes toward criminal sanctioning. Specifically, our analysis examined the relative impact of background characteristics (e.g. age, community context) versus occupational variables (e.g., years on the bench, former prosecutor and/or defense attorney) on five sanctioning scales: rehabilitation, punishment, capital punishment, punishing white-collar offenders, and the treatment of juvenile delinquents. The analysis revealed that political orientation was the most important variable examined. Political ideology was found to be related to all but one of the sanctioning scales (punishing white-collar offenders). In contrast, the social and occupational variables generally were not significantly related to judicial attitudes on the purposes of sentencing.     

试论刑罚个别化的根据

刑事实证学派及目前的刑法理论普遍认为刑罚个别化的根据是基于犯罪人人身危险性的个别预防 ,本文认为刑罚个别化的根据应包括个别公正与个别预防两个方面 ,并且 ,个别公正是主要的依据 ,原因在于人与人之间意志自由的程度、犯罪原因等因素不同 ,这些因素在适用刑罚时都是应该予以考虑的 ,只有全面考虑这些因素才能使刑罚尽可能地做到公正 ;同时 ,刑罚这种社会制度的设立是有功利性的 ,在一般预防与个别预防的功利性选择上 ,应该偏重个别预防 ,个别预防的实现无疑应该以刑罚个别化为前提。刑罚个别化是实现个别公正和个别预防的最佳途径 ,也是必然选择。     

Capital punishment views in China and the United States: a preliminary study among college students

There is a lack of research on attitudes toward capital punishment in China, and there is even less research on cross-national comparisons of capital punishment views. Using data recently collected from college students in the United States and China, this study finds that U.S. and Chinese students have differences in their views on the death penalty and its functions of deterrence, rehabilitation, and incapacitation. This study also reveals that the respondents' perspectives of deterrence, rehabilitation, retribution, and incapacitation all affect their attitudes toward the death penalty in the United States, whereas only the first three views affect attitudes toward capital punishment in China. Furthermore, retribution is the strongest predictor in the United States, whereas deterrence is the strongest predictor in China.     

An examination of a desert-based presumptive sentence schedule

To reduce the problem of sentencing disparity (unlike sentences for like offenses), the Committee for the Study of Incarceration proposed a determinate sentence scheme based on a desert theory of punishment. While the proposal at first glance may appear to solve many sentencing problems, this paper attempts to show its defects and some of the problems involved in (1) determinate sentence schedules generally, (2) desert as a principle of punishment, and (3) basing a determinate sentence schedule on a desert theory.     

Revenge,Retribution, and Values: Social Attitudes and Punitive Sentencing

This study examined the pattern of relations between vengeance attitudes, right-wing authoritarianism (RWA), and social dominance orientation (SDO) using the structure of value types proposed by Schwartz (Adv Exp Soc Psychol 25:1–65, 1992). Relations between these variables and support for a variety of sentencing options, including capital punishment, were then investigated. One hundred and forty-eight students in Adelaide, South Australia, completed a Vengeance Scale (Stuckless and Goranson, J Soc Behav Pers 7:25–42, 1992), measures of RWA and SDO, the Schwartz Value Survey (1992), and a Sentencing Goals Scale. As predicted, vengeance attitudes and SDO were found to be positively related to the importance of power values and negatively related to the importance of universalism and benevolence values. Vengeance attitudes were negatively related to rehabilitation and positively related to support for retribution and incapacitation sentencing goals, while RWA was positively related to the endorsement of deterrence and incapacitation as sentencing goals. Regression analyses indicated that only RWA and vengeance attitudes were unique predictors of death penalty support. Results provide support for the suggestion that vengeance is closely associated with our notion of retributive justice.     

论量刑精确制导

我国《刑法》第5条既是刑法的基本原则,也是量刑公正的一般标准,它要求量刑精确制导,最大限度地避免刑罚误差。实现量刑精确制导的根本出路是理论创新和方法创新,这主要表现在三个方面:(1)依法构建量刑标尺,将法定刑空间划分为200个刻度,把其中各种刑罚折算或者虚拟为有期徒刑的月数,明确1个刻度所体现的不同性质刑罚的度量,用以计算刑罚的轻重程度;(2)在正确定罪并找准法定刑的前提下,理性评价犯罪人具有的量刑情节,将其所反映的社会危害程度和人身危险程度用一定数值(积分)表示,借以计算行为人罪责的大小程度;(3)将量刑情节的轻重积分与量刑空间的轻重刻度按"1∶1"的标准相对应,前者在相应量刑空间中的读数,便是量刑公正的最佳适度。     

Strict Liability’s Criminogenic Effect

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability.     

该当与危险:新型刑罚目的对量刑的影响

立基于再犯危险性预测的剥夺犯罪能力是由犯罪学派首先提出的刑罚理论,并广泛应用于保安处分之中,但是新近作为刑罚目的在量刑中的适用却引起了极大的争论。无论是类型化剥夺犯罪能力还是选择性剥夺犯罪能力,在一种有序列的、并合主义的量刑理论中,都可以找到立足之地,并发挥更加重要的作用,将有限的司法资源集中到最需要控制的危险犯罪类型和犯罪人之上,不但为"宽严相济的刑事政策"填补具体内容提供路径与方法,同时能够最大限度地为刑法赢得道德信誉。     

Justice, Sanctioning, and the Justice Model

The justice model has emerged as an alternative to the discredited rehabilitative ideal as a basis for sanctioning policy. Retributivism or just deserts is offered as the primary justification for the criminal sanction in this model, although sometimes in combination with incapacitation and deterrence as companion rationales for sanctioning. Desert is, additionally, an integral component of a sense of justice that is presented as an attribute of the justice model. Desert, both as a rationale for sanctions and as the basis for justice, is drawn from the philosophical models of Immanuel Kant and John Rawls. However, these models have some rather disturbing implications that have not been addressed by proponents of the justice model. A critical examination of them and their implications for criminology is therefore in order.     

想象竞合的功能及其存在根据

将罪数论升级为竞合论,关键在于要使罪数论的定罪量刑功能转变为竞合论的量刑功能。想象竞合是竞合论中最为重要的成员,它是一个针对自然行为犯数罪如何量刑的理论。在对想象竞合行为定罪时,犯罪构成仍是定罪的惟一标准,因此想象竞合为数罪,在判决书中,要将数罪一一列明。如果对想象竞合数罪并罚,就否定了其存在的必要性。不能对想象竞合数罪并罚的理由,就是想象竞合的存在根据。想象竞合的数罪中,不法量刑情节与特殊预防必要性的情节高度重合,数罪并罚会造成量刑中的重复评价。较轻的一罪在想象竞合的量刑中仍具有一定的发言权,即宣告刑不能低于轻罪的最低刑,同时必须考虑轻罪的附加刑。     

Applying generic sentencing aims in domestic violence cases in England and Wales

There is an enduring legacy of trivialisation and ineffectiveness at various stages in the criminal justice process when it comes to responding to domestic violence. One area of contention relates to sentence. Sentencers in England and Wales are bound by law to have regard to a number of aims: the punishment of offenders; deterrence; public protection; rehabilitation; and reparation. Whilst commentators have criticised the framework on the basis that it is contradictory and engenders inconsistency, it will be argued that granting sentencers discretion to balance the prescribed aims maximises the potential for a successful outcome in individual cases.     

The Silence of the Lambdas: Deterring Incapacitation Research

This essay provides an economist’s perspective on criminological research into incapacitation effects on crime. Our central argument is that criminologists would do well to substantially scale back the enterprise of trying to estimate the various behavioral parameters central to a micro-level approach to measuring incapacitation effects, including the annual rate of offending outside of prison (λ) and the lengths of criminal careers. One problem with this line of research is practical: for example, mean estimates of self-reported criminal activity by incarcerated prisoners are quite sensitive to reports by the most criminally active offenders. But the larger concern is conceptual—the incapacitation effects from a given change in sentencing policy may be undermined by the possibility of replacement effects, and at the same time omit other benefits that may arise from deterrent effects on crime. A more promising approach is to identify plausibly exogenous changes in sentencing policy in order to estimate the net impact on crime from the combined effects of incapacitation, deterrence and replacement.

Contradictions in Judicial Support for Capital Punishment in India and Bangladesh: Utilitarian Rationales

India and Bangladesh share a common history, and each has developed somewhat similarly since partition. However, while both countries now have relatively low murder rates, India has seen a decline in the rate of executions, while Bangladesh continues to impose death sentences and carry out executions at a higher rate. There have been challenges to the death penalty in India, restricting its use to exceptional cases. The same has not occurred in Bangladesh. Yet in both countries, systemic flaws in the criminal process are evident. This article draws on two original empirical research projects that explored judges’ opinions on the retention and administration of capital punishment in India and Bangladesh. The data expose justice systems marred by corruption, incompetence, abuses of due process, and arbitrary and inconsistent treatment of defendants from arrest through to conviction and sentencing. It shows that those with the power to sentence to death have little faith in the integrity of the criminal process. Yet, a startling paradox emerges from these studies; despite personal knowledge of its flaws, judges have trust in the death penalty to deter crime and to realise other sentencing aims and feel retention benefits society. This is explained by reference to utilitarian values. Not only did our judges express strongly utilitarian justifications for sentencing people to death, in terms of their erroneous belief in its deterrent effect, but some also articulated utilitarian justifications for misconduct in pre-trial processes, suggesting that it was necessary to break the rules to secure convictions when the system was dysfunctional and ineffective.

     

Blended Sentencing Laws and the Punitive Turn in Juvenile Justice

In many states, young people today can receive a “blended” combination of both a juvenile sanction and an adult criminal sentence. We ask what accounts for the rise of blended sentencing in juvenile justice and whether this trend parallels crime control developments in the adult criminal justice system. We use event history analysis to model state adoption of blended sentencing laws from 1985 to 2008, examining the relative influence of social, political, administrative, and economic factors. We find that states with high unemployment, greater prosecutorial discretion, and disproportionate rates of African American incarceration are most likely to pass blended sentencing provisions. This suggests that the turn toward blended sentencing largely parallels the punitive turn in adult sentencing and corrections—and that theory and research on adult punishment productively extends to developments in juvenile justice.     

故意杀人罪的死刑裁量基准——“丁汉忠案”的文本梳理和法理审视

目前我国有关故意杀人罪中死刑裁量因素的审查难有真切、统一的基准,而在司法实践中对相关刑法条文含义的理解和阐释较为草率;最高人民法院的指导性案例体现的裁判趣旨未得到充分领会;各量刑因素的作用莫衷一是、标准不一,“估堆”量刑的困境萦绕其间,因而须探索故意杀人罪中相对合理的死刑裁量基准。具体而言,须区分各量刑因素的轻重、位阶,建构以责任刑为主、预防刑为辅的死刑裁量基准。至于是否入围死刑圈主要是仰仗责任刑阶段的判断。若责任刑阶段均是从严因素,基本会入围死刑圈的审查。死刑圈内的三种准刑种如何抉择,取决于对行为人的人身危险性判断。在预防刑阶段若均是从宽因素,一般死缓的判决即可满足要求;若从宽因素和从严因素交错,死缓限制减刑的判决基本可满足要求;若只有从严因素,则有判决死刑立即执行的可能。     

量刑制度宏观问题研究

量刑制度的外观为刑罚裁量与体系化构成 ,包括缓刑制度、死刑缓期执行、再犯和特别减轻制度 ;量刑制度具有规范、限制、整合、贯彻功能 ;运行量刑制度需要考虑运行环境和权力介入、媒体舆论、法官好恶、治安形势等相关影响因素 ;量刑制度存在两个基本走向 ,即综合化与精确化。量刑制度改革宜从总体目标、制度完善并结合刑事诉讼改革三方面同步进行