Punishment and Proportionality: Part 2

This article is a companion to an article by the same author in issue 33.3 of Criminal Justice Ethics on the question of the standard by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted. Its chief argument is that basing the determination on what the offender deserves to suffer is morally problematic because it conflicts with principles of humanity that call for our taking the good of human beings as our end. By contrast, it is also argued, basing the determination on promoting public safety or preserving civil order is not similarly problematic because punishment inflicted to serve either of these ends is compatible with principles of humanity. The article concludes with a comment on how the harsh sentencing laws enacted in the United States in the past 40 years should be seen as a product of the former mode of determining punishment and not the latter.     

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.     

Direct and Indirect Effects of Case Complexity, Guilty Pleas, and Offender Characteristics on Sentencing for Offenders Convicted of a White-Collar Offense Prior to Sentencing Guidelines

Previous research on the punishment of offenders convicted of a white-collar offense estimated models that specify only direct effects of defendant characteristics, offense-related variables, and guilty pleas on sentence severity. Drawing from conflict or labeling theories, much of this research focused on the effects of offender's socioeconomic status on sentence outcomes. Findings from this research are inconsistent about the relationship between defendant characteristics and sentence severity. These studies overlook how differences in case complexity of white-collar offense and guilty pleas may intervene in the relationship between offender characteristics and sentence outcomes. This study seeks to contribute to an understanding of federal sentencing prior to the federal sentencing guidelines by testing a legal-bureaucratic theory of sentencing that hypothesizes an interplay between case complexity, guilty pleas and length of imprisonment. This interplay reflects the interface between the legal ramifications of pleading guilty, prosecutorial interests in efficiency and finality of case disposition in complex white-collar cases, and sentence severity. Using structural equation modeling, a four-equation model of sentencing that specifies case complexity and guilty pleas as intervening variables in the relationship between offender characteristics and length of imprisonment is estimated. Several findings are noteworthy. First, the hypothesized interplay between case complexity, guilty pleas, and sentence severity is supported. Second, the effect of offender's educational attainment on sentence severity is indirect via case complexity and guilty pleas. Third, offender's race and gender effect length of imprisonment both directly and indirectly through the intervening effect of case complexity and guilty pleas. These findings indicate the need to specify sentencing models that consider the direct and indirect effects of offender characteristics, offense characteristics, and guilty pleas on judicial discretion at sentencing.     

Taking Deterrence Seriously: The Wide-Scope Deterrence Theory of Punishment

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant.

This article revisits the concept of deterrence and defend a more plausible deterrence theory of punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality.     

SENTENCING HOMICIDE OFFENDERS IN THE NETHERLANDS: OFFENDER,VICTIM, AND SITUATIONAL INFLUENCES IN CRIMINAL PUNISHMENT*

Empirical investigations of criminal sentencing represent a vast research enterprise in criminology. However, this research has been restricted almost exclusively to U.S. contexts, and often it suffers from key data limitations. As such, an examination of more detailed international sentencing data provides an important opportunity to assess the generalizability of contemporary research and theorizing on criminal punishment in the United States. The current study investigates little-researched questions about the influence of prosecutorial sentencing recommendations, victim/offender relationships, and extralegal disparities in sentencing by analyzing unique data on the punishment of homicide offenders in the Netherlands. The results indicate that offender, victim, and situational offense characteristics all exert important independent effects at sentencing and that prosecutorial recommendations exert powerful influences over judicial sentences. The article concludes with a discussion of future directions for comparative sentencing research across international contexts.     

Is the Offense Serious Axis Free of Extralegal Influence?: Assessing the Predictors of a ‘Legally Relevant’ Guideline Criterion

Grid based sentencing guidelines, composed of offense seriousness and offender criminal history axis, have become a staple of US sentencing in recent decades. As such, extensive research explores whether they reduce extralegal sentence disparity. However, to date, no study has examined whether extralegal disparity is present in how either axis of guideline sentencing are constructed. Using federal sentencing commission data along with both single and multi-level analyses, this research explores the legal and extralegal factors that predict one of these key grid axes: the offense seriousness score. The results call into question not only some assumptions underlying guideline sentencing but also recent analytical strategies for assessing sentencing outcomes in guideline systems.     

THE JUVENILE PENALTY: A COMPARISON OF JUVENILE AND YOUNG ADULT SENTENCING OUTCOMES IN CRIMINAL COURT*

This study uses criminal court data from the Pennsylvania Commission on Sentencing (PCS) to investigate the sentencing of juvenile offenders processed in adult criminal court by comparing their sentencing outcomes to those of young adult offenders in similar situations. Because the expanded juvenile exclusion and transfer policies of the 1990s have led to an increase in the number of juveniles convicted in adult courts, we argue that it is critical to better understand the judicial decision making processes involved. We introduce competitive hypotheses on the relative leniency or severity of sentencing outcomes for transferred juveniles and interpret our results with the focal concerns theoretical perspective on sentencing. Our findings indicate that juvenile offenders in adult court are sentenced more severely than their young adult counterparts. Moreover, findings suggest that juvenile status interacts with and conditions the effects of other important sentencing factors including offense type, offense severity and prior criminal record. We discuss these results as they relate to immediate outcomes for transferred juveniles, criminal court processes in general and the broader social implications for juvenile justice policy concerning the transfer of juveniles to criminal court.     

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.     

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.     

Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.     

The Gender Gap in Sex Offender Punishment

This paper tests theoretical arguments that suggest court actors hold gendered views of sex offenders that result in a gender gap in sex offender punishment, where women who commit sexual offenses are treated more leniently than their male counterparts. We test this argument with precision matching analyses using 15 years of data on all felony sex offenders sentenced in a single state. Results indicate that gender disparities in sex offender sentencing exist and are pervasive across sex offense types. Specifically, male sex offenders are more likely to be sentenced to prison, and given longer terms, than female sex offenders. Findings are similar across sex offense severity and whether the offense involved a minor victim. These findings suggest that female sex offenders are treated more leniently than their matched male counterparts, even in instances of more serious sex offenses and those involving minor victims. Findings support theoretical arguments that contend that court decision-making is influenced by legally-irrelevant characteristics and raise questions about the source of gendered views of sex offenders and their effects on punishment approaches. Findings also raise questions about the virtue of get-tough sentencing policies that provide leeway for such dramatic variation across different groups of people.     

论共同过失犯罪

从主客观相一致原则和罪责刑相适应原则论证共同过失犯罪统一定罪量刑的合理性,并提出共 同过失犯罪成立的条件和立法献言。     

人身危险性在量刑中的思考

刑事古典学派认为惩罚犯罪就是惩罚犯罪行为,所以提出在量刑中主要考虑的是社会危害性的大小;而刑事人类学派和刑事社会学派注重对犯罪分子个体的研究,从犯罪个体中去研究惩罚的力度,在量刑的时候着重考察犯罪分子的人身危险性的大小.两者的争论由来已久,在中国的刑法理论界就是主要采取了刑事古典学派的观点,认为惩罚力度大小应该与罪行的大小相适应,造成的社会危害程度决定刑罚的轻重.那么对于犯罪分子的人身危险性在量刑时的作用究竟应该有多大呢?试从实践入手,针对我国现行法律的规定来阐述一下人身危险性在量刑中的作用,从而完善我国刑法的量刑原则.     

SOME MISLEADING CONCEPTIONS IN SENTENCING RESEARCH

Most studies of sentencing practices in both adult and juvenile courts have compared the relative power to predict dispositions of “legal” variables, such as the seriousness of offense and previous arrest record, and “extralegal” variables, such as race and social class. It is suggested that this is a misleading model for research on the decision-making process in juvenile courts. Instead, results presented here indicate that the juvenile court uses a model of substantive decision-making oriented toward the character and social environment of offenders. Social background variables are found to be more important determinants of disposition than either “legal” or “extralegal” variables.     

Punishment within Prison: An Examination of the Influences of Prison Officials’ Decisions to Remove Sentencing Credits

Despite considerable research directed toward understanding the factors that affect punishment decision‐making leading to imprisonment, few studies have examined the influences of punishment decisions within prisons. Punishment decisions made within prisons can affect an individual's liberty during their imprisonment and/or the timing of their release from prison if the punishment results in the loss of sentencing credits or influences parole decision‐making. Moreover, if punishment disparities result from these decisions, then some offender groups may endure a greater loss of liberty relative to others. In this study, we examine the factors that influence prison officials’ decisions to remove sentencing credits in response to prison rule violations. Analysis of collected data from a Midwestern state prison system reveal that prison officials are primarily influenced by the seriousness and type of the rule violation, along with an inmate's violation history. Other relevant factors include those proximately connected to an inmate's risk of subsequent misbehavior such as gang membership and those that are linked to practical consequences and constraints associated with the organizational environment and particular inmates such as the proportion of their sentence an inmate has served and whether an inmate has mental health problems.     

认罪认罚案件量刑建议“分类精准”模式之提倡

量刑建议权是公诉权的应有之义,对于认罪认罚案件而言,检察机关提出精准量刑建议是量刑协商的根本要求,不仅不会侵犯审判权而且有利于审判权更加合理地行使,为实现审判中心主义创造条件,具有正当性基础。精准量刑建议包括确定量刑建议和"最小化幅度"量刑建议,按照认罪认罚案件的不同类型,遵循比例原则和诉讼经济原则之间的制约与被制约关系,并根据量刑建议精准化程度与程序简化力度之间成正比、与案件重大程度成反比的关系,构建出"分类精准"模式,分为速裁程序及有期徒刑三年以下简易程序案件的确定量刑建议、有期徒刑三年以上五年以下简易程序案件的确定量刑建议为主"最小化幅度"量刑建议为辅等五种类型。检察机关分类测算精准量刑建议时,在量刑基准上应坚持责任优先主义,根据行为的不法与罪责确定责任刑,并采取"点的理论"确定起点刑和基准刑,把认罪认罚作为独立的预防刑情节予以考量。通过建立与"分类精准"相适应的量刑指南、量刑协商、量刑建议说理、量刑调整等机制,提高量刑建议精准化水准。     

The triumph of vengeance over retribution: the United States Supreme Court and the death penalty

In this article the author uses a review of Welsh S. White'sThe Death Penalty in the Nineties as a framework for analyzing recent trends in the United States Supreme Court's death penalty jurisprudence. Since 1976 the Supreme Court has upheld the constitutionality of capital punishment at least in part on the notion that the death penalty serves the useful social purpose of retribution. This article, however, contends that it is imperative to distinguish between retribution and vengeance as rationales for criminal punishment. Modern retributive theory calls for punishments to be guided by considerations of proportionality, fairness, and equality. Vengeance-based punishments, on the other hand, are aimed at satisfying the victim's and society's desire for retaliation and are not limited by the retributive principle that punishment must be proportionate to the severity of the crime and the moral blameworthiness of the offender. The article analyzes recent Supreme Court decisions that are not examined inThe Death Penalty in the Nineties-decisions that allow the introduction of victim-impact evidence into capital sentencing proceedings and permit the death penalty to be imposed on 16-year-old offenders, mentally retarded defendants, and those who neither kill nor intend to kill. These decisions, it is argued, demonstrate that the contemporary Court has bestowed judicial approval on vengeance as an acceptable justification for capital punishment.     

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。     

量刑与定罪互动论:为了量刑公正可变换罪名

现行刑法理论中定罪与量刑的关系被扭曲了,刑法理论把准确定罪置于至高无上的地位,司法机关把大量精力耗费于准确判断罪名,定罪决定量刑、量刑不可能影响罪名成为刑法公理。但是,判断罪名意义上的定罪,并非刑法的目的;对被告人和社会最有意义的是量刑,判断罪名只是为公正量刑服务的;因此,如果常规判断的罪名会使量刑失当,就可以为了公正量刑而适度变换罪名。