The Ethics of Plea Bargaining in International Criminal Trials

The paper argues that contemporary theoretical and philosophical concerns relating to the practice of plea bargaining in international trials for crimes such as genocide should be seen in the broader context of the perceived legitimacy of international trial justice. The paper questions the capacity of international trial structures to deliver a form of truth which contributes to justice suggesting that the legitimacy of the truth available is conditioned by ideology and normative practice. The paper suggests that the key to transforming international trial justice lies in promoting the link between trial ideology and the perceived moral legitimacy of its outcomes through the exercise of judicial discretionary power. Ralph Henham is Professor of Criminal Justice, Nottingham Law School, Nottingham Trent University.     

Criminal Punishment in Islamic Societies: Empirical Study of Attitudes to Criminal Sentencing in Iran

Public opinion on criminal sentencing and aims of punishment has been surveyed mostly in Western countries. In non-Western countries, especially Islamic societies, little has been published, at least in Western journals, on these issues. In fact, no published study examining public views toward criminal sentences and the aims of punishments in Islamic societies may be located in any major database of Western literature. As a result many questions like the relationship between perceived purpose of criminal punishment and its severity and the interactions between the belief in Islam and its Shari’a (Islamic culture) and punitive attitude to criminality have remained unasked. Therefore, the meaning and motive behind the death penalty and other severe forms of punishment in Islamic countries remains unknown to scholars, whether within or outside these countries. This paper introduces, first, Shari’a sentencing laws and practices in some Islamic societies and then, by drawing on a survey administered in Iran in 2008, tries to show and explain the variations in attitudes to Shari’a criminal laws and different forms of punishment, mostly based on Shari’a, across different genders and professions (judges, lawyers, students, Tulab and police).     

Sentencing Contempt of Court in International Criminal Justice: An Unforeseen Problem Concerning Sentencing and Penalties

International criminal tribunals, like any criminal court, havebeen faced with offences against the administration of justice,such as contempt of court. The power of the UN ad hoc Tribunalsto punish these offences has raised problematic issues mainlyconcerning respect for the principle of legality (includingfrequent amendments to contempt-provisions, and the substantialincrease of the sentencing frame for contempt within only afew years). This article seeks to clarify some aspects concerningapplicable penalties and sentencing for contempt of court throughthe examination of the case law of the ad hoc Tribunals andthe Special Court for Sierra Leone, discussing its implicationsfor the principle of legality. It is argued that the processfollowed in sentencing contempt is in many aspects not dissimilarto the traditional judicial practice of the Tribunals concerningpurposes of punishment, aggravating and mitigating circumstancesand guilty pleas.     

Sentencing Thresholds in German Criminal Law and Practice: Legal and Empirical Aspects

The position of the custody threshold and the proportion of cases passing it are crucial for any attempt to reduce imprisonment. The article focuses on the sentencing threshold(s) in Germany, a country that shows relatively low incarceration rates in international comparison. This is in part due to legislation that aims to replace short prison sentences, especially those below six months, by fines, and unsuspended prison sentences up to two years by suspended ones. These provisions are widely applied in practice, yet not always in accordance with the letter of the law. The article will give an overview of the legal and practical aspects of decision-making between fines and prison sentences and between suspended and unsuspended sentences in Germany. It will show that there is not only one sentencing threshold identifiable in practice, but two different ones: firstly, between fines and suspended sentences, and secondly, between suspended and unsuspended sentences. Problems of the German system are identified, among which are the convertability of day fines into suspended and unsuspended prison terms and the treatment of persistent recidivists. Finally, possible solutions are proposed.     

实践中的刑事一审期限:期间耗费与功能探寻——以S省两个基层法院为主要样板

透过审限耗费角度的实证研究可以发现,我国基层法院刑事审判程序具有如下特征:庭前程序的"事务化",庭前程序沦为纯粹的案件管理活动;庭审程序的"速审化",庭审时间耗费少,庭审节奏明快;庭后程序的"中心化"与"间隔化"。传统观点认为,我国刑事审限制度具有人权保障和效率提升功能。通过比较和实证的考察发现,我国"贯通式"审限的真实功能为通过监控法官的审理行为,达到塑造与行政化司法制度结构相契合的审理主体的目的。     

Overview of Language Rights in the International Criminal Law Sentencing Models

This paper examines the ‘deep-end’ of the international justice process—the incarceration of persons convicted in specially constituted international criminal tribunals and courts for gross violations of human rights, genocide, crimes against humanity and war crimes with a focus on language rights of such prisoners who are commonly serving sentences in foreign prisons. The punishment phase of the international justice process and its effects are not easily quantifiable and have been largely hidden from view. Although international criminal law asserts that equal treatment before the law requires that there be no significant disparity in punishment regimes from one sentence-enforcing country to another, comparative penology shows that there are considerable differences in the conditions of confinement and the nature of correctional services in the prison systems of different countries. This has a direct impact on post-sentence procedural and rehabilitation rights of which language rights from a key part. In this specific context, and drawing from existing literature, the paper therefore examines the extent to which enforcement practice conforms to the ideal of equal treatment espoused by the tribunals.     

认罪认罚案件中量刑建议的审查

<正>自认罪认罚从宽制度正式实施以来,理论实务界围绕量刑建议展开了大量研究,针对量刑建议的性质、效力,量刑协商的程序,以及量刑建议的形式,特别是确定刑还是幅度刑等问题形成了诸多成果,(1)但对于量刑建议的审查,包括法院审查的内容、标准、机制等关注研究不多。认罪认罚制度的适用在实践中快速推进,特别是"两高三部"新近出台的《关于适用认罪认罚从宽制度的指导意见》(以下简称《指导意见》),明确规定检察机关一般应当提出确定刑量刑建议,这     

Developing Sentencing Guidelines in Massachusetts: A Work in Progress

Sentencing guidelines legislation is currently under consideration by the Massachusetts legislature. This paper discusses the process used by the Massachusetts Sentencing Commission in formulating the sentencing guidelines legislation. The conceptual model and key substantive considerations associated with the sentencing guidelines are summarized, with special attention to two salient issues – intermediate sanctions and mandatory sentencing and their relationship to the sentencing guidelines. The paper concludes with a discussion of the reactions to the guidelines legislation and the prospects for passage.     

Fair and Expeditious Pre-trial Proceedings: The Future of International Criminal Trials

In recent times it has been argued that international criminalproceedings are too costly, too long and no longer politicallyor financially viable. This article proposes several ways inwhich pre-trial proceedings in international criminal trialsmay be fairly expedited. The author argues that more judicialinvolvement in the pre-trial phase could assist in reducingthe length and ineffectiveness of international criminal trials.     

Alcohol and Drug Mitigation in Capital Murder Trials: Implications for Sentencing Decisions

Analyses of the impact on sentencing when alcohol and drug‐related mitigation is used in the sentencing phases of capital murder trials is virtually absent from the existing literature. The present study addresses this by exploring the effect of having mitigation with alcohol and drug themes accepted in a large sample (n = 804) of capital murder trials in North Carolina. Logistic regression analyses that include a number of relevant control variables reveal no substantive impacts of having alcohol mitigation accepted by capital murder juries, but drug mitigators that were either accepted or rejected by juries were associated with an increased risk of receiving a death sentence. Possible reasons for the results and their implications are discussed and suggestions are made for further study of the effects of alcohol/drug mitigation in capital trials.     

A Study on Improvement of Criminal Sentencing in Korea: Determinants in Fraud Cases

The primary purpose of this study is to investigate the process of judges' sentencing in Korea. Drawing on an empirical data set of the fraud cases, the study proposes (1) to identify the determinants of judges' sentences (2) to contribute to the development of a methodology for the study of sentencing by showing how to conceptualize abstract research questions and finally (3) to identify the scope of an individual judge's discretion. The results of data analysis reveal several interesting points. First, there exists considerable discrepancy in sentencing among individual judges. Such a problem strongly suggests that it is necessary to reform and renovate the current sentencing system so as to guarantee more reasonable sentences. Second, the most important factor determining sentencing is the quantity of prosecution that prosecutors demand. Based on this result, it might appears that Korean prosecutors faithfully execute their jobs to defend the public good. However, it is also quite possible that the defendant is not able to challenge the prosecutor effectively in the trial process. If this is the case, it deserves serious attention, especially in Korea where a publically-sponsored defending attorney is provided only on very limited occasions. Because this study is being based on a limited number of cases (313 fraud cases), the findings should not be over-generalized. To make sound and proper generalizations, more cases need to be analyzed.     

A Proposed Determinate Sentencing Model In Virginia: An Empirical Evaluation

After a brief presentation of issues that preceded the current disillusionment with the indeterminate sentencing practices in juvenile justice, the authors describe a determinate sentencing model being proposed in Virginia. Then, data are discussed comparing length of sentence under the proposed model to incarceration periods under the present indeterminate structure according to offense history, age, gender, and race. Finally, some immediate implications of the proposed model of sentencing are discussed.     

涉黑案件量刑合法性、合理性实证研究——以西部某市15起典型案件为样本

量刑的合法性和合理性是实现对涉黑犯罪最佳控制效果的关键因素。实证调查数据显示,涉黑案件的量刑在一定范围和程度上出现了合法与合理性的缺失,具体表现在:数罪之间犯罪事实的重复评价、量刑根据的背离以及量刑情节的不适当评价。最大程度地实现涉黑案件的量刑合法和合理,需要在坚持罪刑相适应原则之下,全面地适用量刑的规范根据、适当地选择量刑的事实根据并且合理地评价量刑情节对宣告刑的影响。     

对认罪认罚从宽制度中量刑建议问题的思考

随着司法体制改革的深入和刑事诉讼法的修订,检察机关要依法明确提出量刑建议。量刑建议对于规范量刑活动,促进量刑公正,进而实现现代化国家治理和法治国家建设具有重要的价值,更是认罪认罚从宽制度的适用基础。2019年10月24日,“两高三部”颁布《关于适用认罪认罚从宽制度的指导意见》,对认罪认罚从宽制度中量刑建议的一系列问题,如量刑建议的形式、效力、调整、审查与采纳等作出了规定,但还存在认识上的模糊甚至误区,在一定程度上会影响认罪认罚从宽制度的正确适用和作用发挥。为此,本刊推出本期特别策划,针对认罪认罚从宽制度中的量刑建议问题,从制度设计初衷、制度蕴含的法理要求以及制度发展的现代化思维等方面进行深度剖析,确保认罪认罚从宽制度的正确实施和健康发展。     

Videoconferencing in Criminal Proceedings: Legal and Empirical Issues and Directions for Research

State and federal courts are increasingly using videoconferencing to hold proceedings in criminal cases, including first appearances and arraignments. However, little systematic information is available about the extent of its use, the proceedings for which it is used, how it is implemented, and, most importantly, whether videoconferencing affects the behavior or perceptions of participants in a way that violates a defendant's fundamental rights. In this article we review the legal and empirical issues raised by the use of videoconferencing in criminal cases and describe empirical research that could and, we argue, should, inform policy decisions concerning its use.     

刑事诉讼实证研究中的数据解读——与徐美君女士商榷

以数据为根据的定量研究能够较为直观地反映刑事诉讼实践的某些侧面.但是,如果研究者缺乏对刑事诉讼实践的了解,那么,其对数据的解读就有可能流于表面,甚至出现对数据误读的可能.从认识的角度而言,刑事诉讼从立案到侦查、起诉、审判是一个认识逐渐深入的过程,立案数、侦查破案数、移送审查起诉数、审判数的递减是符合刑事诉讼认识规律的表现.实证研究中,对数据的解读不是数学计算中简单的加减乘除,而应当透过数据的表面,追问数据背后的各种可能,如此才能真正地发现问题、解释问题,并进而寻求问题的解决之道.