恢复性司法对我国刑事诉讼制度的影响

恢复性司法是一种不同于传统司法模式的新型司法模式,它寻求尽可能利用罪犯、受害者和社区的积极和自愿参与的方式,恢复受犯罪影响的所有当事方的一切权益。我国引入恢复性司法既具有刑事司法实践、刑事观念、刑事制度和社会发展的基础,也与我国当前的刑事诉讼制度存在一定冲突。恢复性司法实践与理念对我国刑事诉讼可能产生的影响,突出表现在刑事观念、诉讼制度和检察机关法律监督方式等诸多方面。     

论恢复性司法的本土资源与制度构建

恢复性司法缘起于上世纪70年代的刑事司法实践,并逐渐成为影响传统刑事司法的重要司法范式。恢复性司法是在反思传统司法的基础上产生、发展起来的。可以弥补传统刑事司法过于对抗、忽视被害人等缺陷,从而迅速风靡于西方国家。我国无论是文化观念,还是刑事司法制度与实践,都存在着契合于恢复性司法的因素。刑事司法制度的完善,有必要吸收恢复性司法的理念,结合我国刑事司法的本土资源,建立恢复性司法制度。     

Uses of Meta‐Analysis in Criminal Justice Research: A Quantitative Review

Meta‐analysis has been adopted in many scientific fields for synthesizing large bodies of research, for evidence‐based development of practical policies, and for empirical resolution of difficult questions. It provides a rigorous, objective, and quantitative strategy to make effective use of an existing body of research, even when the results seem inconsistent and inconclusive. This paper reviews usage of meta‐analysis in research on criminal justice‐related issues and problems over the past three decades, identifying 176 studies published between 1976 and 2006 using meta‐analysis methods on criminal justice topics. Characteristics of these 176 studies are coded and analyzed to identify trends in the use of meta‐analysis by criminal justice researchers, as well as to summarize distinctive variations in how it has been used. A comparison of criminal justice with meta‐analysis usage in other social and applied science fields suggests some hesitation in adopting the methodology.     

宽严相济刑事政策在检察工作中的运用

宽严相济刑事政策的精髓肇始于古代刑法思想,新时代赋予了这一刑事政策跨时代的含义.检察机关要从构建和谐社会的内在要求出发,深刻领会宽严相济刑事政策的精神实质,并充分运用这一刑事政策指导检察工作.从现实和构想的角度出发,重点对检察机关在逮捕、审查起诉、起诉以及刑罚执行等阶段应如何运用宽严相济刑事政策作了探讨.检察机关务必运用好这一政策,该宽则宽,当严则严,运用有限的司法资源维护无限的公平正义.     

Representing Theory and Theorising in Criminal Justice Studies: Practising Theory Considered

The author considers the role and place of theory in criminal justice studies. The argument is that the operation and interrogation of fundamental categories is integral to social scientific enquiry and if criminal justice studies is to resist a technocratic “protective service” orientation it must promote theorising and thinking conceptually via the texts which represent the discipline to undergraduates. Although theory is situated at the core of social science curricula, there is little or no agreement on its role or place in research and pedagogy. The dominant understanding of theory within criminal justice studies (including its sociological and criminological incarnation) is that it is something to be referred to. What is seldom emphasised in theory or methods texts is the practice of theorising. Texts that are designed to be the student’s first contact with the field of criminal justice studies, and which reflect broader attitudes toward social enquiry, seldom consider the methodological and pedagogical issues related to the production and role of analytic concepts and do not present social science as an imaginative or reflexive practice. Drawing on critical realist metatheory, this paper advances a distinction between social and sociological problems and social science and protective service toward illustrating that a social science approach to the study of criminal justice demands the operation and interrogation of analytic categories and explicit consideration of issues of epistemology and ontology. Works which seek to avoid this serve only to foster a passive rather than active engagement with their subject matter.     

Corrective Justice as A Principle of Criminal Law: A Prolegomenon

This article argues that corrective justice is an adequate principle of criminalization. On my interpretation, corrective justice holds that, in order for an action to count as a crime, there needs to be a plausible normative story about an offender having violated the interests of a victim in a way that disturbs their relationship as equal persons and a subsequent story about responding to crime in a way that corrects this disturbance. More specifically, I claim that corrective justice is concerned with the protection of interests that persons have in owning private goods throughout standard interactions with other persons. The argument proceeds in three steps. First, I specify the subject-matter that principles of criminal law need to ground and provide an outline of the idea of corrective justice. Second, I show that corrective justice can account for the main cases of crime and the salient modes of criminal responsibility. I also argue that corrective justice can make sense of two prima facie recalcitrant types of cases (rape and inchoate offenses). Third, and finally, I address two objections to my corrective justice theory of criminal law. The first concerns the implications corrective justice has for locating criminal law along the private/public law divide. The second objection raises the putatively problematic consequences corrective justice has for understanding the separation between criminal and civil law.     

论社会管理创新中的刑事法治问题

社会管理创新是当今法学界讨论颇多的一个话题。对于社会管理创新与刑法的关系,要建立在法治的认识前提下,社会管理创新与刑法的基本原则并不冲突,刑法的天然属性使得其与社会管理存在紧密的互动关系,同时,刑法的保障法地位,又决定了社会管理创新需要刑法做坚强的后盾,保障秩序稳定。为了适应社会管理创新的要求,基于两者的契合,刑事法治发展需要从五个方面作出努力:关注社会情势,贯彻宽严相济刑事政策;保障公民权利,重视民生犯罪;"刚柔并济",坚持以人为本;革新纠纷解决机制,灵活、多样化解矛盾;落实行刑社会化,契合多元治理理念。     

Wither Criminal Justice? An Argument for a Reformed Discipline

The American criminal justice system fails to achieve justice, reduce crime, and provide equal protection to Americans regardless of their social class, race, and gender. But, criminal justice as an academic area of study has become a popular and fast growing liberal arts major in the United States, churning out tens of thousands to work in the criminal justice system. Given the demonstrable harms caused by criminal justice, which are suffered disproportionately by the least powerful people, academic criminologists and criminal justicians have the obligation to promote a reformed discipline. This article briefly summarizes the evidence of bias in the criminal justice system and then turns to how these biases relate to criminal justice as an academic discipline. Using the war on drugs as an example, I argue that the practice of criminal justice as an academic endeavor runs counter to the goal of promoting social justice in America. One of the ironic conclusions of this article is that criminal justice as an academic discipline must get smaller if we are to achieve larger goals of social justice outlined here. This revised version was published online in July 2006 with corrections to the Cover Date.     

论刑事法的历史分析

历史分析，作为法学重要的研究方法之一，对于刑事法研究具有积极意义。对中国当代刑事法进行历史分析，并非去发现所谓的“民族精神”，而是寻找刑事法律制度得以形成的脉络，以及在法制演进中的政治、经济和文化因素。在刑事法学研究中运用这种分析方法，具体表现为历史比较研究、历史的社会研究以及历史的价值研究。对中国刑事法发展作历史研究，应区分不同时代，并有目的性地进行研究，进而挖掘其中可为当代刑事法发展利用的有益因素。     

Integrated Administrative Data & Criminal Justice Research

Using integrated administrative data from criminal justice and social service systems can harness information in meaningful ways that transcend traditional “silos” and allow communities to focus collective attention on important social issues that cross systemic boundaries. Despite recent advances in use of integrated administrative data, practical information to promote adoption by new users is lacking. Here we provide an introduction to potential uses of integrated administrative data for criminal justice researchers, including general benefits of using integrated data as well as implications for innovative research design. We describe a case example of data integration through a state data warehouse for a federally funded project on impact of incarceration on families. The project utilizes data from eight agencies (corrections, juvenile justice, mental health, substance use, social services, health, education, and environmental control) and includes development of an Online Analytical Processing cube. We draw from lessons learned to provide specific recommendations for developing researcher-practitioner partnerships that use integrated administrative data to improve translational criminal justice research and evidence-based practice and policy.     

Toward an Interpretive Criminal Justice

This paper presents the academic field of criminal justice as an interpretive social science. The opening section discusses academic criminal justice from scientific and interpretive perspectives, arguing that the terminology of “justice” is essentially contested. The second section presents the key implication of a contested core terminology: that an interpretive approach is the best way to develop the academic field of criminal justice. Section three reviews central elements of the Gadamerian tradition, with an eye towards its application to the field of criminal justice. The fourth section considers two issues pertinent to an interpretive criminal justice—the problem of interpretation in a field where professional practice is destructive to other normative systems, and the contribution of an interpretive criminal justice to public policy.     

How Is Criminal Justice Related to the Rest of Justice?

Are principles of criminal justice derived from a broader conception of justice, or does criminal justice involve some of its own distinctive principles such that it is not—for example—an aspect of distributive justice? Examining considerations regarding luck and desert provides an illuminating approach to this issue. The notion of desert has largely been excised from a great deal of recent political theorizing, and in particular, it has been eliminated from many influential conceptions of distributive justice. It is widely held that the pervasiveness of luck renders desert inappropriate to contexts of distributive justice, and incompatible with the freedom and equality of persons in a just political community. Should considerations of desert also have a minimal role in criminal justice—where they seem to still be important? Are considerations of desert in the context of criminal justice consistent with persons being free and equal participants in a just political community? How are principles of criminal justice related to principles of distributive justice and political justice in an overall just society? Many scholars agree that criminal justice presupposes an adequately just society. Still, that leaves open just how criminal justice relates to justice overall. That is the present topic.     

The Hidden Arm of the Law: Examining Administrative Justice in Gun Carry Licensing

Responding to calls to “decenter” American penality beyond the carceral apparatus, this article ethnographically examines administrative process and dissects how it interlocks with criminal justice. To do so, it draws on an admittedly unusual, but theoretically generative, case: administrative gun boards, charged with issuing, denying, revoking, and suspending licenses to conceal carry a firearm. While scholars have examined gun ownership and gun carrying as a social practice, less attention has been paid to gun licensing as a state practice. Drawing on observations of over 900 cases from gun board meetings in two counties in Michigan, this paper examines how administrative process mimics, supplements, and facilitates criminal justice through three mechanisms: procedural pains, in which administrative process resembles criminal justice; parallel punishment, in which administrative process supplements criminal justice through withholding of benefits, entitlements or licenses; and valve‐turning, in which administrative process funnels, or threatens to funnel, claimants into the criminal justice system. Revealing how administrative process and criminal justice become mutually reinforcing, the findings extend and integrate scholarship that shows the material, symbolic, and psychic implications of criminal justice contact, on the one hand, with the increased tendency of administrative contexts to resemble criminal justice institutions, on the other.     

我国刑事审判监督存在的问题及其对策

刑事审判监督作为检察机关的监督职能之一,对维护司法公正,实现社会公平与正义具有重要意义。但在司法实践中,由于立法上的不完善、司法权配置的不平等、检察人员监督意识薄弱以及庭审方式的改革等原因,使刑事审判监督权效力的发挥受到影响。因此,必须从完善刑事审判监督立法,以加强检察机关对审判权的监督等方面来解决现存的问题,保证国家法律的正确统一实施。     

论宽严相济刑事政策几个问题

面对社会转型的现实,我们应该以刑事立法理念和刑事司法理念的调整和重构为出发点,重新审视刑事政策。刑事政策是一个历史的范畴、动态的过程,它以社会总体态势为依托,以社会犯罪态势为晴雨表、风向标。应通过前瞻与检讨,从事理、情理、法理角度论证宽严相济刑事政策是合理地组织对犯罪反应机制的应然选择。     

The Iron Fist in the Latex Glove: The Intersection of Public Health and Criminal Justice

The intersection of public health and criminal justice involves reducing negative human outcomes, disease and crime, respectively. In this article, we examine the public health approach in detail and how it relates to criminal justice research and practice and how each discipline achieves legitimacy. We demonstrate the public duties of the criminal justice system and how it already performs some public health duties and how we can better integrate public health approaches at the academic, bureaucratic, and street levels.     

Mediation and Restorative Justice in Belgium

In this article we present, discuss and try to evaluate initiatives which were recently introduced into the Belgian criminal justice system, aimed at the development of creative answers to crime that avoid the use of traditional prison sentences. We decided to focus this analysis on the practice of mediation as it is actually considered the most innovative approach to the crime problem. Mediation as a problem-solving intervention has to be considered in direct relation to the discussion of the purpose of the criminal justice system. By putting the emphasis on the dialogue between the victim and the offender, a common solution is worked out with the help of a mediator. In this way reparation, redress and sometimes even reconciliation become core values of the penal action.     

Trust and Legal Governance: A Case Study of Ethiopian Criminal Justice

Current empirical research on trust in criminal justice focuses on those who do the trusting. Working from the theoretical position that trust is relational, this article expands that research by showing how trust relationships between the public and criminal justice institutions are shaped by the legal framework governing them. Reporting empirical case studies from the plural legal governance of criminal justice in Ethiopia, the article shows that the country's different legal frameworks produce different constructions of trust relationships between the public and criminal justice institutions. Furthermore, the empirical study shows that the practical organization of daily case handling in criminal justice institutions make for an important mechanism to mediate and link these differently constructed trust relationships.     

We [Should] Take Care of Our Own: The Role of Law and Lawyers in Criminal Justice and Criminology Programs

Law-related courses, and more broadly the place of the law and lawyers in criminal justice programs, are the focus of this paper. I believe that the importance of the law, the study of legal issues, and the way in which the law is taught in criminal justice programs is in need of significant refinement. We need more law-related courses in the curriculum, at both the undergraduate and graduate level, more PhDs with an understanding of the law, and more legal research done by criminal justice scholars. In the pages that follow, I make the case for changing how we approach the study of law in criminal justice undergraduate and graduate programs.     

Administrative Justice in Wales

This article examines some of the synergies between Phil Thomas’ work and the authors’ research into administrative justice in Wales. Like him, they have examined the impact of new rights-based legislation on access to justice, and also share with him an interest in connections between politics, social policy, and access to justice. The article argues that Wales is not yet taken seriously as ‘a site in which [administrative] justice is done’, and that there remains an ‘implementation gap’ when it comes to putting innovative social policy into practice. The limited development of an administrative justice culture can hamper the achievement of social and economic justice in Wales; such a culture could be fostered with leadership from the Welsh Government and the Senedd, alongside improved training for administrators, and the potential addition of ‘a just Wales’ to the well-being goals contained in the Well-being of Future Generations (Wales) Act 2015.