收回死刑复核权面临的难题及其破解

最高人民法院收回死刑复核权意义重大,但可能存在政治风险、职能难题、整体性问题和程序性障碍。应对难题的原则与对策:一是系统思维、综合治理。尤其强调观念的转变、审判独立性的保障以及死刑替代措施的跟进;二是逐步推进、有利有节;三是技术处理、区别对待;四是分级负责、责任下沉、责任明确。为此,必须完善死刑复核程序。包括准确界定最高法院复核责任,确定适当的复核审审理方式,限定复核时间,允许辩护律师与检察官参加复核程序等。必须完善死刑案件二审程序,包括实行开庭审理及有重点的全面审理方式,同时应当适当调整二审审理期限。还必须改革、完善直接影响死刑案件质量的相关制度,包括从多方面完善证据规则,改革审判委员会制度以及禁止再审改判死刑等。     

收回死刑复核权面临的难题及其破解

It is of great significance for the Supreme Court of China (SCC) to take back the power of having judicial review for death sentences. For that purpose, first, we have to amend the procedures for judicial review for death sentences, including precisely defining the responsibility of the SCC to review death sentences, determining appropriate modes of review, prescribing the time limit of review, allowing the participation of defense lawyers and prosecutors, etc. Second, we must also amend the appellate procedures for capital cases, including holding hearings, comprehensive trial of key cases, and adjusting the time limit for the second instance. Third, we must improve relative systems that can directly affect the trial quality of capital cases, including the improvement of evidentiary rules, the reform of judicial committees, and the forbiddance to change an original sentence into a death sentence. Long Zongzhi, professor, chairs the academic commission at Southwestern University of Politics and Law. Meanwhile, he takes the vice chair of the supervising committee of legal education in the Ministry of Education of China. He advanced the theory of dual structure of criminal litigation in early 1990s and put forward the theory of relative reasonableness in late 1990s, which exerted great influence in academic law. Moreover, he has published a great number of works on criminal litigation, judicial system, and evidence law.     

Politics and the Death Penalty: 1930–2010

Recent theorists have argued that the use of the death penalty has been shaped by political considerations throughout history. However, empirical research has primarily examined this relationship in the last third of the twentieth century. In order to expand the temporal scope used to examine capital punishment practices, this study examines whether four post-Furman perspectives are able to account for the use of death sentences at the state level from 1930 to 2010. This study also examines whether the movement from the pre- to the post-Furman time period moderated the relationship between political factors and use of death sentences. The findings indicate that the size of religious fundamentalist populations, jurisdictional welfare expenditures, and surpluses in the labor force are significant predictors of death sentences across both eras. These results suggest that the predictive power of recent political theories is not restrained to the jurisdictional use of death sentences in the last third of the twentieth century.     

死刑控制与最高人民法院的功能定位

死刑控制与最高人民法院的关系是社会各界关注的热点问题。分析表明,2007年以来最高人民法院全面收回死刑复核权,对其自身造成了一系列影响;最高人民法院的内部结构与实际功能,由此发生了深刻变化。这些变化并不完全符合现代法治理念下最高人民法院的功能定位。未来应该在考虑政治与社会条件的基础上,有步骤地改造最高人民法院在死刑控制方面的工作职能与方式,以减轻最高人民法院不必要的工作负担与资源消耗,促进最高人民法院将更多的资源用于应对更加宏观、复杂的问题。     

中国死刑复核程序的检讨与改进

1980年以来,部分死刑案件核准权被下放使死刑复核程序名存实亡,立法上的疏漏和诉讼构造的缺失造成死刑复核程序难以起到最后的程序保障作用。试就完善立法、收回死刑核准权和改进死刑复核程序等三个方面的问题进行分析和探讨。     

The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales

This examination of the extent of the use of neuroscientific evidence in England and Wales identifies 204 reported cases in which such evidence has been used by those accused of criminal offenses during the eight-year period from 2005–12. Based on the number of reported cases found, the use of such evidence appears well established with those accused of criminal offenses utilizing such evidence in approximately 1 per cent of cases in the Court of Appeal (Criminal Division). Neuroscientific evidence is used to quash convictions, to lead to convictions for lesser offenses and to lead to reduced sentences. In addition, cases are identified where neuroscientific evidence is used to avoid extradition, to challenge bail conditions and to resist prosecution appeals against unduly lenient sentences. The range of uses identified is wide: including challenging prosecution evidence as to the cause of death or injury, challenging the credibility of witnesses and arguing that those convicted were unfit to plead, lacked mens rea or were entitled to mental condition defenses. The acceptance of such evidence reflects the willingness of the courts in England and Wales to hear novel scientific argument, where it is valid and directly relevant to the issue(s) to be decided. Indeed, in some of the cases the courts expressed an expectation that structural brain scan evidence should have been presented to support the argument being made.     

Overkill? An Examination of Comparatively Excessive Death Sentences in North Carolina, 1990–2010

This study examines death/life capital sentences in one southern state, North Carolina, during the period 1990 to 2010 to determine the extent to which they are comparatively excessive/lenient. The study employs data derived from a variety of official sources on the population of capital trials in the state during this timeframe and follows the analytic techniques developed by David Baldus and his colleagues and by Paternoster and Kazyaka in their studies of comparative excessiveness in capital sentencing in California, Georgia, and South Carolina, respectively. The results show a substantial number of death sentences that meet the standard for excessiveness, but the data also show a nearly equal number of life sentences that may be deemed too lenient. The implications of these findings are discussed.     

Proportionality and Self-Defense

Proportionality is widely accepted as a necessary condition of justified self-defense. What gives rise to this particular condition and what role it plays in the justification of self-defense seldom receive focused critical attention. In this paper I address the standard of proportionality applicable to personal self-defense and the role that proportionality plays in justifying the use of harmful force in self-defense. I argue against an equivalent harm view of proportionality in self-defense, and in favor of a standard of proportionality in self-defense that requires comparable seriousness and takes into account the wrong, as opposed simply to the harm that the victim is fending off. I distinguish the standard of proportionality in self-defense from proportionality in circumstances of necessity, and I discuss whether proportionality is an internal or an external constraint on the right of self-defense.     

The principle of proportionality in biometrics:Case studies from Norway

The principle of proportionality is a decisive factor in the legal review of biometric systems by the Data Protection Authorities (DPA) in EU member states. However, in the working document on biometrics the Data Protection Working Party gives little guidance on how the purpose and proportionality principle must be applied to biometrics. There remain uncertainties as to the specific criteria and factors that are used for evaluating the proportionality of processing biometric information. This sometimes leads to contradictory decisions by different national DPAs on similar biometric related issues. This paper aims to discuss the legal factors and parameters that are generally adopted to address the proportionality issue in the biometric context. After a brief analysis of the legal notion of the principle of proportionality, the paper analyses and discusses the European organisations’ interpretation of the recent Norwegian cases on biometrics. The paper then concludes with a summary of the interpretation of the proportionality principle within the biometric context and gives specific recommendations of several important factors that need to be taken into account.     

The Presumption of Innocence and the Human Rights Act

There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.     

A journey into the unknown: Pretrial publicity and capital cases

This article examines issues related to pretrial publicity's role in the free press‐fair trial debate. First, the article provides a comprehensive review of existing research examining the effects of pretrial publicity on case outcomes. Second, it examines the presentation of prejudicial publicity items in a sample of newspaper stories on capital cases, identifying the types of factual and emotional publicity presented and suggesting areas that need to be more closely scrutinized in future research. The article concludes that cases that ultimately result in sentences of death receive both more and different types of pretrial publicity than cases that result in lesser sentences. The current state of empirical pretrial publicity knowledge, and the presentation of death cases, are discussed as they relate to the balancing of First and Sixth amendment rights.     

‘Punishment’ in Non-custodial Sentences: A Critical Analysis

This paper reviews various uses of the concept of ‘punishment’ in relation to non-custodial sentences, including the frequently-made comparison between ‘punishment’ and ‘rehabilitation’. It concludes that ‘punishment’ has no stable meaning in respect of such sentences and, when utilised, often results in non-custodial penalties being found wanting by comparison with imprisonment. It is suggested that all sentences should be regarded as ‘punishments’, and that the creative development of community penalties will best be achieved by working with a threefold conceptualisation of reparation, rehabilitation and incapacitation, set within appropriate boundaries of proportionality.     

死刑核准权归位后的程序正当性分析

死刑核准权归位是解决死刑核准权异化,根除下放所造成的立法矛盾和实务问题的惟一选择。死刑复核程序的诉讼化改造要求贯彻书面审和开庭审相结合,事实审与法律审相结合,书面审则实行阅卷与提审被告人相结合;立法应当明确赋予死刑复核程序中被告人的律师辩护权和当面陈述权;死刑复核程序仍然应当明确时限规定;检察机关有权对死刑复核程序实行法律监督,监督的方式是抗诉和检察建议;我国死刑复核程序不宜实行三审终审制改造,也不宜只实行法律审。     

The federalism dimension of proportionality

EU Treaties contain an arsenal of purpose-defined and ambiguous competences that are enjoyed by EU institutions, yet devote little attention to the restraining impact of EU competences on Member States' autonomy and policies. While the focus has traditionally been on subsidiarity to deal with competence issues, the judgment of the Bundesverfassungsgericht in Weiss revitalises the discussion on the potential of proportionality to guide competence issues. This inquiry seeks to highlight both the existing traces of competence proportionality employed by the Court to allocate competences as well as the potential of the proportionality standard to temper the spillovers on Member States' autonomy accruing from the exercise of EU competences. While the Treaty restricts proportionality to reviewing the use (not existence) of EU competences, the Court has implicitly employed proportionality considerations to verify the existence of EU competences. In addition, drawing from established case law, competence proportionality assessments could rely on an effect-based substantive review in combination with procedural duties allowing a meaningful balancing of national autonomy against the dynamics of deeper integration.     

比例原则的中国宪法依据新释

比例原则已被全球法治实践反复证明属于人权保障的利剑,必将成为中国合宪性审查的基本标准。为了更好地推进合宪性审查,并消除对比例原则适用范围与功能的误解,有必要探寻比例原则在中国的宪法依据。通过解释我国《宪法》中“权利义务一致性”“基本权利”“人格尊严”“法治国”“征收征用”等条款的尝试,均不能很好或完全地推导出比例原则。比例原则的本质在于调整权力与权利、权利与权利之间的关系,其功能在于合理确定国家权力与公民权利的界限。比例原则内置于权利和权力之中。通过解释我国《宪法》第51条的“权利的限度”条款和第33条第3款的“国家尊重和保障人权”条款,可以得出比例原则在中国具有宪法依据,属于宪法基本原则。     

论欧盟行政法上的比例原则

比例原则要求行政机关施加于个人的负担不得超越所拟实现目标，审查标准涉及方式与目标的适当性、必要性以及所涉利益的均衡性。在欧盟行政法上，比例原则具有极其重要的地位，审查强度因适用范围的不同亦有所变化。欧盟各成员国特别是英国受到欧盟行政法的影响，引起了比例原则与其固有原则之间的冲突。同时，由于涉及到行政专业领域的裁量问题，比例原则的适用也存在一定的争议，值得关注。     

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.

     

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert‐based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning‐making, and institution‐building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.     

An Eye for an Eye: Proportionality as a Moral Principle of Punishment

The lex talionis of the Old Testament has been widely perceived—understandably,but mistakenly—as a barbaric law of retribution in kind.It is better understood as a seminal expression of restraintand proportionality as moral principles of punishment. Thishas been recognized from the earliest times. Over the interveningcenturies, the lex talionis has lost neither its moral significancenor its penal relevance. This is reflected in H.L.A. Hart'ssynthesis of modern retributivist and utilitarian theories ofpunishment and, again, in contemporary Canadian law throughthe recognition of proportionality as the fundamental principleof sentencing under the Criminal Code. The tension between thisfundamental principle and Canada's increasing resort to mandatoryminimum sentences of imprisonment is examined briefly in thislight.