刑罚交付执行中的疑难问题与制度构建

刑罚交付执行是法院生效裁判得以最终实现的关键。司法实践中,刑罚执行中存在看所守拒收罪犯、社区矫正机关拒收矫正对象等问题,损害了司法公正和权威,也给社会带来极大的安全隐患。完善刑罚交付执行的立法及司法解释、建立沟通联动机制、人员转变理念对于执行问题的解决具有积极意义。     

监禁刑悖论与行刑社会化

在现代社会，监禁刑的执行存在着若干悖论：罪犯监狱化和罪犯再社会化的矛盾，监禁刑措施所产生的监禁痛苦与刑罚人道化以及刑罚矫正功能的矛盾，封闭的监禁机构与开放的社会之间的矛盾等。其中最为突出的是罪犯的监狱化问题，监狱化的核心内容和主要结果是对罪犯亚文化的学习与接受，表现为犯罪化和机构化。由于罪犯监狱化过程实质是一种反社会化过程，所以监狱化的存在使得以监禁为刑罚手段而进行矫正罪犯、促进再社会化等目标大打折扣甚至归于失败，监狱行刑悖论的基本形式——罪犯监狱化与罪犯再社会化的矛盾由此展开。行刑社会化能够有效地缓解监禁刑所存在的上述矛盾。     

死刑的惩罚与改造功能

刑罚具有惩罚和改造的功能 ,这是人所共知的。但对死刑是否也具有改造性质和功能这个问题 ,一般观点都认为 ,死刑是惩罚性质最强的刑罚方式 ,因此它只有强制剥夺罪犯生命的单一惩罚性质 ,并不具备改造具体犯罪人的功能。但笔者以为 ,把死刑的功能看作是单一的惩罚的认识是片面的。因为刑罚的惩罚与改造功能两者是对立统一的矛盾关系 ,如果坚持按照这种矛盾关系看待死刑 ,就可以发现死刑不但具有最大的惩罚功能 ,它同样具有一定程度的改造性质和功能。所谓刑罚的惩罚与改造功能之间的矛盾关系 ,首先是指两者之间存在相互对立的性质。这种对立…     

监狱刑罚以促进罪犯顺利回归为根本目的——从社会法治与社会人性角度思考监狱改造

罪犯改造目的来源于刑法目的和刑罚目的。三者之间,刑法目的是总要,刑罚目的是中介,改造目的是为刑法和刑罚目的服务的,监狱刑罚的目的即为罪犯改造目的。本文从社会法治与社会人性角度对监狱改造问题进行了简要的探讨。     

刑罚制度的善与变

编者按:随着我国社会生活的变迁、政治经济文化的全面发展,我国刑罚制度显示出难以迅速适应社会发展的一面。以变而论,在我国刑罚制度中存在死刑偏重、生刑偏轻;     

理性与经验的弥合——中国刑罚改革中的认识论与方法

我国正在经历社会转型,在社会矛盾比较突出的今天,如何利用好刑罚,发挥刑罚的积极效用,尽可能避免其消极影响,就显得尤为重要。对于今天这样一种局面,因时因势进行刑罚改革,即是对社会现实的一种积极回应。在对我们既有刑事法制进行诊脉自疗的同时,还要积极吸取西方法治发达国家的有益经验,尤其是其刑罚改革的方法论。当然,在吸取经验过程中要注意“水土不服”问题。     

关于建立行政刑罚制度的构想

行政刑罚制度是刑法学与行政法学交叉学科的产物,是探求用一种新的手段来解决新的社会矛盾。行政刑罚制度具有本身的独立性。行政刑罚制度的建立既是社会现实的需要,也是我国立法和行政执法的要求。行政刑罚制度的立法体系应当以自由刑、财产刑和资格刑为主导,在程序上适用司法程序。     

“合与和”：当代中国特色治理工具梳理

作为一个超大型的国家,中国国家治理离不开对其基本国情的判断和分析。长期以来,对于中国政治体系和特点的判断十分丰富,而其中最具有代表性的是认为中国国家治理一直面临着"权威体制与有效治理"之间的矛盾。基于这样的判断,新中国成立以来,新政权在实践中选择了一系列符合中国实际的治理工具,这些治理工具可以分为两类,一是基于中央地方关系基础上的"统一权威与分散治理的整合",二是基于国家社会关系基础上的"集中权威与自主治理的调和"。这是对自清朝晚期地方过度分权导致的国家政权机器碎片化的重大修正,奠定了当代中国国家治理体系和治理能力发展的基础,更体现了中国国家治理中的"合和"的哲学。     

论我国未成年人犯罪与刑罚——对“教育为主,惩罚为辅”的解析

在日益强调关爱并保护未成年人的今天,面对日益严重的未成年人犯罪问题,犯罪与刑罚之间似乎出现了矛盾或者不相适应。有些人形式地理解＂教育为主,惩罚为辅＂的原则和＂教育、感化、挽救＂方针的内涵,并将其误解为通过减少对未成年人犯罪的认定以及减轻对未成年人犯罪的刑罚适用,就能达到保护未成年人并且预防犯罪的目的。然而,这种＂过度轻刑罚化＂的趋势是否契合根治未成年人犯罪的现实需要是值得商榷的。     

论劳动教养的错位与刑罚的效能缺失

我国劳动教养制度存在着性质错位、劳动对象在立法上的错位;目标错位、刑罚效率缺失;刑罚权威缺失;公民法律意识 模糊等问题。因此,我国应作出相应的法律规定,以适应社会发展需要。     

Missed opportunities: learning from the mistakes at Attica

The Attica prison riot was the culmination of years of increasing tension between the urban, racial, and ethnic minorities held at the prison and the rural, white officers, and administrators responsible for incarcerating them. While race was certainly an important factor in the riot, there were also a number of problems at the prison that prompted inmates of all races to unite against the New York State Department of Correctional Services and the state government. Inmates’ frustration increased as they waited for reforms that were promised but never materialized. As inmates’ patience waned, the prison administration made a number of decisions that damaged its ability to maintain peace and respond to problems. A review of the circumstances leading to the riot at the Attica Penitentiary in September 1971 is included as well as an analysis of some more recent riots where similar conditions and warning signs were present.     

Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886

The Riot (Damages) Act 1886 imposes a no‐fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots across England in 2011 an independent Home Office review, the Kinghan Report, concluded that the fundamental principle of the Act should be retained, while the machinery should be modernised. The Report conceives of the Act as a useful, if highly unusual, compensation scheme that may ease socio‐economic problems in riot‐prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision‐making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the Law Commission proposed in 2008), but liability without fault.     

COLLECTIVE ACTION IN PRISONS: PROTESTS,DISTURBANCES, AND RIOTS*

This study assesses competing explanations of inmate collective action using data from a nationwide sample of 317 adult maximum-and medium-security state prisons. Most previous studies have relied on data from only those prisons that have experienced riots. Hence, the conditions thought to cause collective outbursts may be equally present in prisons that did not experience such action. The current design allows for a comparison of riot and nonriot prisons. Additionally, this study examines the forces that generate other forms of collective action in prison, such as minor disturbances and inmate work stoppages. The results show that the variables under the administrative-control theory heading, but not the inmate-balance theory heading, help account for these events. Some consideration is given to the possibility that these two theories are complementary explanations.     

Riots without killings

From 1980 to 1985 serious clashes between police and squatter activists and their supporters occurred on the streets of Amsterdam. This paper describes the series of riots that took place and analyzes five of them in greater detail. Specifically, the investigation focuses on the issue of learning from recurrent crises. Did the authorities learn from one riot to the next? If so, in what ways and at what levels? And how effective did the lessons drawn prove to be — given the fact that the other party may have learned as well. Analyzing the key decisions that have been taken in these cases and confronting them with alternative scenarios that may have been pursued, suggests that learning from crises is a two-edged sword. Its potential benefits must be traded off against risks of overgeneralization or misapplication of lessons. The paper is commented on by Arthur H.W. Docters van Leeuwen, Head of the Dutch Security Service.     

TARGET CHOICE DURING EXTREME EVENTS: A DISCRETE SPATIAL CHOICE MODEL OF THE 2011 LONDON RIOTS

Riots are extreme events, and much of the early research on rioting suggested that the decision making of rioters was far from rational and could only be understood from the perspective of a collective mind. In the current study, we derive and test a set of expectations regarding rioter spatial decision making developed from theories originally intended to explain patterns of urban crime when law and order prevail—crime pattern and social disorganization theory—and consider theories of collective behavior and contagion. To do this, we use data for all riot‐related incidents that occurred in London in August 2011 that were detected by the police. Unlike most studies of victimization, we use a random utility model to examine simultaneously how the features of the destinations selected by rioters, the origins of their journeys, and the characteristics of the offenders influence offender spatial decision making. The results demonstrate that rioter target choices were far from random and provide support for all three types of theory, but for crime pattern theory in particular. For example, rioters were more likely to engage in the disorder close to their home location and to select areas that contained routine activity nodes and transport hubs, and they were less likely to cross the Thames River. In terms of contagion, rioters were found to be more likely to target areas that had experienced rioting in the previous 24 hours. From a policy perspective, the findings provide insight into the types of areas that may be most vulnerable during riots and why this is the case, and when particular areas are likely to be at an elevated risk of this type of disorder.     

The Developing Habitus of the Anti‐Social Behaviour Practitioner: From Expansion in Years of Plenty to Surviving the Age of Austerity

Specialist anti‐social behaviour units are common within social housing providers, with many established in response to the policies of the New Labour governments of 1997–2010. These units now find themselves operating in a different political and financial environment. Following the English riots of 2011, the Coalition government, whilst imposing budgetary cuts across the public sector, called on social housing providers to intensify their role in tackling disorder. This article explores the habitus or working cultures within anti‐social behaviour units post‐New Labour. It does so through empirical research conducted in the aftermath of the English riots. The research finds that practitioners view their work as a core function of social housing provision. They have developed an understanding of human behaviour, which crosses the criminal and social policy fields with a wide skillset to match. A number of factors including national policy, community expectations, and multi‐partnership engagement influence their dynamic working culture.     

When More than Property Is Lost: The Dignity Losses and Restoration of the Tulsa Riot of 1921

Bernadette Atuahene's We Want What's Ours focuses on deprivations that go beyond property losses. Her focus is on the dignity harms to South Africans over centuries, such as denial of citizenship, that accompanied the theft of their land. I focus here on one grotesque episode of violence, the Tulsa race riot of 1921, to gauge dignity takings in a US context. Thousands were, in the parlance of the times, run out of town in a “negro drive.” They lost property, but also their community, and they could not assert their rights after the riot. This article turns to the ways in which African Americans in Oklahoma obtained rights through the courts that should have been protected around the time of the riot. This expands our sense of the range of responses, from apologies and compensation, to additional judicial process and substantive rights, that are needed for past racial crimes.     

县级政改——基于法治的视角

本文基于法治的视角，封贵州瓮安事件、重庆万州事件、安徽池州事件等“无直接利益冲突”群体性：事件进行观察与思考，提出县级政权应立即启动政改，认为县级政改应选择以保障公民基本权利为中心的法治退路，并予以分析论证。     

Prisons,politics and organized crime: the case of Kyrgyzstan

Based on unique empirical data including interviews with inmates and criminals, the article discusses the informal governance system in the prison and its link with organized crime in Kyrgyzstan. It accomplishes two main tasks. First it looks at the inmate governance structure and demonstrates the change that reflects the general transformation in the thieves’ world and second, it shows how the political environment shapes internal prison dynamics and demonstrates the impact of regime transitions on penal institutions. It argues that political transitions disturb the existing power equilibrium between political elites and criminal leaders that leads to an attempt to curb the thieves’ influence in the prison that in turn leads to the prison riots.