罪刑均衡的司法考察

司法中的罪刑均衡原则通过责任要素的介入将报应主义下的罪刑均衡与目的主义下的刑罚个别化原则结合起来 ,表现为责刑均衡 ,实现了量刑原则由一元向二元的转变。在罪刑均衡原则的实践过程中 ,定罪与量刑是两个密切相关的范畴。准确定罪始终是公正量刑的前提 ,但量刑对定罪亦有不可忽视的反作用。当前 ,我国司法实践中存在着量刑趋重与量刑偏差较大等问题 ,制约着罪刑均衡原则的充分实现。对量刑偏差问题 ,比较现实的解决方案是将各地量刑经验汇总至最高人民法院 ,在学者的参与下确立起个罪的量刑基准 ,并逐步建立起适度的遵循先例制度 ,以实现量刑的统一。至于量刑趋重问题 ,它是我国刑法文化形态的外在表现 ,难以在短期内得到改观 ,但司法依旧可以有所作为。     

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     

量刑规范化与法官量刑自由裁量权的衡平

法官量刑自由裁量权的存在对量刑规范化的实现是必不可少的.在我国目前情况下,我们对法官量刑自由裁量权的存在应持有限度的认可的态度,不提倡法官量刑自由裁量权的过度行使.可以考虑从量刑理由的阐述、量刑基准点的确立和量刑刑事判例的角度对法官量刑自由裁量权的行使进行制约.     

In Defence of Substantial Sentencing Discretion

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical–political grounds.     

Beyond Sentencing Guidelines: Additional Functions for Intermediate Sentencing Entities

The first part of this two-part special issue on structured sentencing in the U.S. focused on individual jurisdictions and the relationship of five types of sentencing reforms to judicial discretion and to the political and legal forces that originated, maintained, altered or sometimes ended the reform. This issue moves the focus to a comparative one, looking across a variety of different jurisdictions to report common threads of advantage and disadvantage to the various structured sentencing systems. Originating in political and legal arenas, structured sentencing affects not only the sentencing process, but can itself affect the political process and the distribution of sanctioning discretion among the different branches of government.     

量刑思维规律下的量刑方法构建

量刑在本质上不是＂刑之量化＂,而是＂刑之裁量＂。这决定了量刑思维不只是形式逻辑思维或辩证逻辑思维,而是二者的有机统一。量刑方法作为量刑思维的表现手段,需遵循量刑思维的以上逻辑规律。传统的经验量刑法虽然是辩证逻辑思维的充分展现,但没有融入现代形式逻辑的现代科技手段;而所谓现代量刑方法虽然使用了现代科技手段,但又只是遵循现代形式逻辑规律,规避了辩证逻辑规律。刑法现代化下的量刑方法构建,应是基于量刑思维的逻辑规律,把传统经验量刑法与各所谓现代量刑方法进行整合,以形成定量与定性相结合的量刑方法。     

Effects of Reducing Judicial Sentencing Discretion

This article uses a nationwide sample of state criminal cases to show the effects of reducing judicial sentencing discretion on disparities across rural-urban, southern-northern, black-white, and poor-nonpoor defendants. Judicial sentencing discretion is defined as the ratio between (1) the range in years within which a judge is allowed to sentence, and (2) the minimum number of years the judge must give when there is no probation. The data do indicate specific differences in sentencing between states of high judicial discretion and those of low judicial discretion, and the relationship of these disparities to discrimination is discussed.     

论定罪量刑的社会学模式

现行刑事立法赋予法官享有一定的定罪量刑自由裁量权,该自由裁量权受诸多案件社会结构因素影响,案件社会结构因素影响定罪量刑的过程及其表现出的样式就是定罪量刑社会学模式。定罪量刑的社会学模式以案件社会学理论为参照,并基本被实证研究所证实。由于同性质的具体案件的社会结构不同或同一案件在不同诉讼阶段的社会结构不同,法官受其影响程度也不同,定罪量刑不公正现象由此而生。实现公正定罪量刑的关键在于避免定罪量刑社会学模式发生作用。     

检察机关提出量刑建议的合理模式——以职务犯罪案件为视角

近年来,职务犯罪案件出现了量刑失衡的现象,这与我国现阶段量刑程序中存在问题有着密切的关系。理论界和司法实务界在规范量刑程序,限制法官的自由裁量权方面进行了有益地尝试。在职务犯罪刑事诉讼中,保证控辩双方掌握证据的完整性,加强控辩双方之间对抗性是检察机关提出合理量刑建议的重要因素。     

Displaced discretion under Ohio sentencing guidelines

The argument that curbing judicial sentencing discretion generates more prosecutorial discretion at earlier decision points in case processing received little empirical attention beyond Miethe's (1987) before/after study of the Minnesota guidelines. This article presents an examination of whether Ohio's sentencing reform resulted in significant changes in prosecutorial decisions related to indictment severity, dropped charges, charge reductions, and overall plea bargains. The implementation of determinate sentencing guidelines corresponded with a significant yet modest increase in the likelihood of charge reductions only. Some changes also occurred in the specific effects of various defendant characteristics on some of the outcomes examined, but these changes did not uniformly result in harsher dispositions for defendants facing greater social and economic disadvantage. Similar to Miethe's observation regarding Minnesota's sentencing scheme, any increase in levels of prosecutorial discretion that might have occurred under Ohio's latest scheme had not resulted in substantive extra-legal disparities in case dispositions.     

规制量刑权的路径探析

量刑权属于德沃金言下的弱自由裁量权，具有实现个案事实与刑法规范无缝对接、彰显社会正义与保障人权的价值。量刑虽是一项具有浓郁能动司法色彩的活动，但量刑权的行使却不能简单地基于正当、合理的名义。而是首先应遵循一套实体规则，这个实体规则以责任刑法为价值基础，背靠法律人经验，思维步骤符合认知规律且历经实践检验；同时为确保实体规则得以一体遵循，还须设置和运行量刑程序，最终促使法官判罚说理，提高司法信度和效度。     

量刑建议制度运作构思

为规范法官的自由裁量权，实现公平与正义，有必要实行量刑建议制度。量刑建议制度运作的核心在于，量刑规则的建立、量刑建议内容的详细而具体且在判决书中予以全部表达、量刑建议的庭审吏锋这三方面内容的确立。     

Same Crime,Different Time: Why we Need an Amended Guideline for Repeat Offenders to Minors

Currently there is a circuit split between the Second and Ninth Circuits in determining whether or not to apply previous juvenile sex offenses to the sentencing of an adult sex offender. The Second Circuit feels it is within the trial court's discretion to apply an enhancement of the U.S. Sentencing Guidelines by applying either a juvenile adjudicated or unadjudicated sex offense to the sentencing of an adult offender. The Ninth Circuit sees that as improper and only adult sex offenses should be counted toward the sentencing of adult sex offenses. Due to the vague language of this enhancement, the determination of how to apply this is up to the court's discretion. This Note proposes that the U.S. Sentencing Commission amend section 4B1.5, and decide in favor of the Ninth Circuit due to the plain text reading of the statute, as well as the intent of the guideline itself alongside the “rule of lenity” as understood in the Ninth Circuit's reasoning of only applying adult offenses to the sentencing of that adult later on in life. The positive public policy of rehabilitation of juvenile offenders would be served greatly by this amendment to this guideline. By eliminating the possibility of having such an offense count against a juvenile in the future would allow and encourage those juveniles to take positive steps toward their future.     

Taking the Law Into Our Own Hands: Structured Sentencing, Fear of Violence, and Citizen Initiatives in Washington State

This paper examines the impact of citizen initiatives on Washington State's system of structured sentencing. Criminal justice sentencing guidelines were implemented in Washington's juvenile court system in 1978 and in its adult felony courts in 1984. In the twenty years since, both systems have experienced significant changes, many of which impact judicial and administrative discretion. Early modifications to the guidelines were driven by legislative and administrative concerns (budgeting, prison population management). More recent changes have been driven by citizen initiatives fostered as a response to public fear of crime and violence. Increasingly, the public has rejected the advice and management of adult sentencing guidelines by criminal justice professionals, and taken a direct hand through the initiative process in setting the limits of judicial and administrative discretion. As a result, structured sentencing has become more complicated and less internally consistent. It remains unclear whether this is the inevitable price of growth in single issue politics and more direct public involvement in the determination of sentencing policy     

量刑建议制度:现实与未来——一个实证角度的研究

检察官量刑建议制度是制约法官量刑自由裁量权的重要方式,也是确保量刑公正的重要手段。通过对某基层检察院量刑建议施行情况调研资料的分析可以看出:实务界对量刑建议采纳率存在误读、程序设置背离诉讼效率、辩护权并未加强、量刑建议中的刑期计算存在不合理性和不规范性等一系列问题。应以公正和效率两大诉讼价值为主线,寻求解决我国检察官量刑建议实务困境之路径。     

Opening the Door for More: Assessing the Impact of Sentencing Reforms on Commitments to Prison Over Time

Since the early 1970s, U.S. states have adopted a series of sentencing reforms that have substantially altered sentencing and release policies by limiting discretion of judges, parole boards, and/or prison administrators. The current study assesses shifts in year-to-year changes in new commitments and parolees returned to prison within all 50 states from the years 1972 to 2008. The study tests the theory that sentencing reforms resulted in increased commitments to prison due to changes in the structures of sentencing and not due to increased crime. Data was analyzed using panel regression with robust standard errors, fixed effects, and conditional change scores. By treating six main sentencing reforms as dynamically interacting, the results suggest that certain combinations of sentencing reforms significantly increase new commitments while the number of parolees returned to prison was not meaningfully affected. The analysis further indicates that the combinations that the reforms appear in at the state-level influence the magnitude of the impacts of reforms.     

中国传统量刑制度的近代化——以《大清新刑律》为对象

中国传统的量刑制度在清末修律中发生了很大的变化,清末刑律在法定刑的设定方面采取了相对法定刑制度,增加了关于酌定量刑情节的规定,从而扩大了法官量刑的权力。另外,传统法律中影响量刑平等的情节也大都被废止。民初的司法实践也能表明清末刑律中的量刑制度得到较为严格的遵守。     

Measuring and Explaining Charge Bargaining

Charge bargaining is a potentially important form of discretion in criminal sentencing that is obscured in many studies of sentencing outcomes. Our procedure to measure the difference in sentencing outcomes caused by plea bargain emphasizes the amount, in months, that the sentence length is reduced. Using this measure, we compare prosecutorial discretion across counties in two different states. We conclude that charge bargaining plays an empirically important role in determining sentencing outcomes. Furthermore, we find that measuring the distance (in months of prison time) moved during a charge bargain may provide a very different estimate of the discretion than is given by the rate of bargaining, which is the usual measure used. Although the rate of charge bargaining was higher in the voluntary guidelines state, its impact on sentences was greater in the presumptive guidelines jurisdiction, as predicted by Reitz (1998). We further observe a dramatic difference in predictions from shifting the case characteristics underlying the summary measure. This result reveals that distributional differences (either due to the underlying criminal activity or due to the overall level of severity of punishment) can easily obscure the inferences necessary for understanding the operation of the systems. Our finding of differential charge bargaining in these two jurisdictions should provide a caution when comparing the results of studies of disparity in sentencing across jurisdiction types.

论量刑规范化的实现路径——以刑罚差异性为切入点

量刑是法官在遵循犯罪事实和刑法规范的基础上,运用自身经验和司法逻辑进行理性判断的过程,科学的量刑结果不可能完全整齐划一。电脑或数学量刑均无法代替法官自身经验和智慧。因此量刑规范化的实现,有赖于在立法完善的前提下,发挥和提高法官自身的司法智慧。