Structuring Judicial Discretion in China: Exploring the 2014 Sentencing Guidelines

In recent years, a range of western jurisdictions has introduced reforms designed to restrict and guide judicial discretion at sentencing. The reforms enacted include mandatory sentencing laws and guiding statutes prescribing sentencing purposes and principles as well as important aggravating and mitigating factors. However, formal guidelines are the most promising and well-studied innovation. We may now add China to the growing list of countries that have recognized the utility of guidelines. Over the past decade, China has slowly developed sentencing guidelines for its courts. The new guidelines contain both general directions with respect to the determination of sentence as well as specific numerical guidelines for common offences. The guidelines do not follow the approach taken by the US schemes, many of which employ a two-dimensional sentencing grid. Instead, China has adopted a strategy consisting of “Starting Point” sentences which are then adjusted by the court to reflect relevant mitigating and aggravating factors. This approach is much closer to the guidelines developed in England and Wales and those proposed but not yet implemented in New Zealand and Israel. In this article, we explore the new Chinese guidelines and provide a limited comparative analysis with guidelines in other jurisdictions. England and Wales is selected as the principal comparator since it has developed and implemented a comprehensive system consisting of both offence-specified guidelines as well as generic guidelines.     

Search for Sentencing Equity: Sentence Review in Massachusetts and Connecticut

Grievances and restlessness among convicted prisoners led to legislation–in 1943 in Massachusetts, in 1957 in Connecticut–establishing sentence review boards composed of three judges of the trial courts of first instance. The authors explore in these two jurisdictions how often and under what circumstances sentences are appealed and modified and what effect, if any, these modifications have on the sentencing practice in the trial courts. They also appraise the value of the Connecticut requirement that the review board state the reasons for its decisions. The authors explore the function of the review boards in the broader context of the need for reducing sentence disparity.     

Questioning Blackmun's Thesis: Does Uniformity in Sentencing Entail Unfairness?

It is commonly believed among criminal justice scholars that sentencing guidelines increase uniformity in sentencing at the cost of fairness. They reason that guideline systems rarely take all relevant case characteristics into consideration, and as a result, impose sentences in particular cases that are biased relative to the ideal or best sentence. This bias effect is one of the primary theoretical and practical challenges faced by courts and sentencing commissions in the last 30 years, and provides one of the strongest arguments against mandatory sentencing guidelines. This article identifies a second effect of guidelines on fairness, which has not been sufficiently acknowledged by the scholarly literature: the variance effect increases the fairness of sentences directly by increasing uniformity. This article uses statistical simulation to examine the relationship between the variance effect and the bias effect. The results provide substantial evidence that the variance effect is comparatively large, and that it may often outweigh the negative effects of bias. Under these conditions, sentencing guidelines will both increase uniformity and increase fairness.     

Sentencing data-driven cybercrime. How data crime with cascading effects is tackled by UK courts

This paper contributes to research seeking to understand if and how legislation can effectively counter cybercrimes that compromise personal data. These ‘data crimes’, which are the ‘dark side’ of big data and the data economy enabled by cloud computing, display cascading effects, in that they empower disparate criminals to commit further crimes and victimise a broad range of individuals or data subjects. The paper addresses the under-researched area of sentencing, which, as the last step of the judicial process, plays a crucial role in how the law is interpreted and implemented.This paper investigates courts’ approach to the evolving technological environment of cybercrime captured by data crime and the cascade effect and whether the cascade effect can assist courts in dealing with data-driven cybercrime. The paper examines original data collected from UK courts, namely 17 sentencing remarks relating to cybercrime court cases decided in England & Wales between 2012 and 2019. The analysis shows that courts appreciate the impact of data crime and their cascading effects, but that the complexity of the offences is lost at sentencing, arguably due to the negative impact of systemic factors, such as technology neutral law and the lack of legal authorities.After examining such systemic factors, the paper suggests how the cascade effect could aid sentencing by adding specificity and context to data crime. The paper ends with avenues for further research relating to debates on fair cybercrime sentencing and open justice.     

Race and Ethnicity Effects in Federal Sentencing: A Propensity Score Analysis

Research has examined the role of race and ethnicity in the punishment of offenders. Narrative and meta-analytic reviews have indicated that race/ethnicity influences key sentencing outcomes, at least under certain conditions. This research relies almost exclusively on regression-based analyses for determining race and ethnicity effects. While this technique is useful, recent statistical advances may provide more accurate race/ethnicity estimates. The current study employs propensity score analysis to compare punishment outcomes across White, Black, and Hispanic offenders sentenced in US federal courts during the years 2006 through 2008. Results suggest that (a) during the in/out decision the effect of minority status is frequently smaller than that estimated by regression modeling and (b) during the sentence length decision the effect of minority status is frequently larger than that estimated by regression modeling. Consequently, the modeling strategy may produce different conclusions regarding the presence of race- and ethnic-based disparity in sentencing outcomes.     

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

Non-custodial Dispositions and the Politics of Sentencing

In 2012, the Government of Victoria, Australia, introduced a new form of non-custodial disposition known as the “community correction order” (“CCO”). In 2014, the Victorian Court of Appeal was asked to provide guidance to sentencing courts so that CCOs could fulfil their potential as an alternative to imprisonment. The Court’s guideline judgment concluded that the advent of the CCO had the potential to transform sentencing in Victoria but that this would depend upon the community being properly informed about the capacity of a CCO to operate punitively, as well as to promote rehabilitation. This did not occur, however, and there was strident criticism of the judgment as authorising inadequate punishment of serious offences. Although sentencing courts have utilised the CCO appropriately in the light of the judgment, the Government recently legislated to restrict its availability.     

Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes

One of the important goals of the federal sentencing guidelines was to reduce inter‐judge disparity in sentencing. In this paper, we test the assumption that structuring discretion produced uniformity in federal sentencing and consistency in the process by which judges arrive at the appropriate sentence. We also examine whether background characteristics of judges affect the sentences they impose on similarly situated offenders. We used hierarchical linear modeling, nesting the offenders in the judges that sentenced them in order to examine the sentencing decisions of federal judges in three U.S. District Courts. While we found that significant variation between judges in sentencing is largely accounted for by our level 1 characteristics, we also found that judges arrive at decisions regarding the appropriate sentence in different ways, by attaching differential weights to several of the legally relevant case characteristics and legally irrelevant offender characteristics.     

The Time Penalty: Examining the Relationship Between Time to Conviction and Trial vs. Plea Disparities in Sentencing

Although studies of sentencing routinely find that defendants who plead guilty receive relatively lenient sentences compared with similarly situated defendants convicted by trial, we have yet to fully understand the role of “mode of conviction” in the sentencing process. In particular, we know little about how the size of the disparity between guilty pleas and trial convictions may depend upon time in case processing, or the timing of pleas; that is, when during the process defendants plead guilty. This is a considerable issue, as “time” often is central to explanations given for plea-trial disparities. The current study examines this central, yet seldom empirically captured, dimension of the sentencing process. Using information gathered in an ancillary data collection effort operated under the supervision of the American Terrorism Study, we differentiate between the mode of conviction and time to conviction and explore the role of “time” in sentence severity, especially with regard to the plea-trial disparity. While consisting of defendants identified in connection with terrorism investigations, and sentenced in federal courts, our study takes advantages of a unique opportunity to isolate the effects of time from the mode of disposition and to explore time correlates of sentencing outcomes. In doing so, we raise important questions about the multiple ways in which time and mode of conviction may affect sentencing more generally and contribute to the larger theoretical discussions of how punishment decisions are made.     

Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales

Objectives

The development and application of methods to assess consistency in sentencing before and after the 2011 England and Wales assault guideline came into force.

Methods

We use the Crown Court Sentencing Survey to compare the goodness of fit of two regression analyses of sentence length on a set of legal factors before and after the assault guideline came into force. We then monitor the dispersion of residuals from these regressions models across time. Finally, we compare the variance in sentence length of equivalent types of offences using exact matching.

Results

We find that legal factors can explain a greater portion of variability in sentencing after the guideline was implemented. Furthermore, we detect that the unexplained variability in sentencing decreases steadily during 2011, while results from exact matching point to a statistically significant average reduction in the variance of sentence length amongst same types of offences.

Conclusions

We demonstrate the relevance of two new methods that can be used to produce more robust assessments regarding the evolution of consistency in sentencing, even in situations when only observational non-hierarchical data is available. The application of these methods showed an improvement in consistency during 2011 in England and Wales, although this positive effect cannot be conclusively ascribed to the implementation of the new assault guideline.     

Sentencing disparities for juvenile offenders sentenced to adult prisons: An individual and contextual analysis

While the punishment of juvenile offenders has increasingly become an issue of major concern to the public, there are few studies that test the government's coercive response to offending by this particular group. This study addresses this issue by examining the variation in sentence length for juvenile offenders adjudicated in the adult criminal courts for violent offenses. Results from the regression analyses consistently show that, while factors related to the specific offense are important contributors to the variation in sentence length, differences in the ideological climate of each state are a strong predictor of the variation in adult sanctions for minors. Specifically, the findings show that conservative citizen ideology and Republican control of state government are important contributors to the variation in sentencing of juveniles across U.S. states. Additional evidence shows that states where judges must run in an election to gain their seats proscribe more severe sanctions on juvenile offenders by sentencing more of them to adult prisons. Overall, the results suggest that the social and political climate of each state plays a very strong role in the sentencing of juvenile offenders to adult prisons.     

论量刑精确制导

我国《刑法》第5条既是刑法的基本原则,也是量刑公正的一般标准,它要求量刑精确制导,最大限度地避免刑罚误差。实现量刑精确制导的根本出路是理论创新和方法创新,这主要表现在三个方面:(1)依法构建量刑标尺,将法定刑空间划分为200个刻度,把其中各种刑罚折算或者虚拟为有期徒刑的月数,明确1个刻度所体现的不同性质刑罚的度量,用以计算刑罚的轻重程度;(2)在正确定罪并找准法定刑的前提下,理性评价犯罪人具有的量刑情节,将其所反映的社会危害程度和人身危险程度用一定数值(积分)表示,借以计算行为人罪责的大小程度;(3)将量刑情节的轻重积分与量刑空间的轻重刻度按"1∶1"的标准相对应,前者在相应量刑空间中的读数,便是量刑公正的最佳适度。     

Sentencing disparity: An analysis of judicial consistency

This paper reports the results of an analysis of judicial disparity in the sentencing of persons represented by legal-aid lawyers. Because the socioeconomic characteristics of legal-aid clients are fairly uniform, the analysis of such cases made it possible to explore the influence of case facts, system factors, and the judicial disparity of the sentences given in relatively similar situations. The analysis finds that case facts and offender characteristics, particularly prior record, are good predictors of sentence type and excellent predictors of sentence length. While there was some indication of judicial inconsistency in sentence-type decisions, that is, unexplained variation from case to case, there was little indication of strong individual judicial bias across the cases used in the analysis.     

Location,location, location: Interdistrict and intercircuit variation in sentencing outcomes for federal drug-trafficking offenses

Research on sentencing has made clear that factors beyond case and offenders' attributes influence court decisions. Environmental and procedural characteristics also significantly affect the sentences of criminal courts. Yet, while state-level studies regularly control for such factors, most research on modern federal determinate sentencing has neglected jurisdictional attributes and variation as sources of extralegal sentence disparity. Using the organizational context and social worlds theoretical perspectives with a multilevel analytical approach, this study assessed how district and circuit of adjudication affect case-level lengths of sentences for federal drug-trafficking offenses, finding that both significantly affect sentencing outcomes and their predictors.     

Sentencing Councils and Victims

This article explores the place victims have, and should have, in bodies that formulate sentencing guidelines, with particular reference to sentencing guidelines in England and Wales and the Sentencing Council's obligation under the Coroners and Justice Act 2009 to have regard to ‘the impact of sentencing decisions on victims of offences’ when devising guidelines. The issues are situated in political and penological contexts; the place of victims in sentencing commissions or advisory bodies in the USA, England and Australia is analysed and the meaning and significance of the Sentencing Council's obligation towards victims is considered, relating the specific obligation to broader issues concerning the place of victims within bodies that formulate sentencing guidelines. While incorporating victims within sentencing commissions might undermine commissions’ aims, it can play an important role in helping to boost public confidence in criminal justice, a touchstone for all western governments’ criminal justice policies.     

The Effects of Mental Health and Substance Abuse Disorders on Institutional Misconduct Among Female Inmates

The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.     

“量刑规范化”解读

何谓"量刑规范化"是研究和探索量刑规范化问题的基础和前提,可理论上尚无明确或有价值之界定。基于对刑法现代化及量刑的实质和规律的考量,量刑规范化应是对"量刑",即把抽象的法律规则与具体的案件事实相结合并上升为理性与具体的过程的规范化。它表现为量刑统一化与量刑个别化的有机统一,是在尊重量刑实质和遵循量刑规律的前提下,通过设置和适用完备的程序制度,使量刑生产出公正有效及符合刑罚目的的量刑判决。     

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.     

COURT COMMUNITIES UNDER SENTENCING GUIDELINES: DILEMMAS OF FORMAL RATIONALITY AND SENTENCING DISPARITY

Efforts to structure sentencing through guidelines involve a fundamental dilemma for the sociology of law—guidelines attempt to emphasize formal rationality and uniformity (Savelsberg, 1992) while allowing discretion to tailor sentences to fit situations and characteristics of individual defendants when courts deem it warranted (substantive rationality). This exercise of substantive rationality in sentencing based on "extralegal" criteria deemed relevant by local court actors risks the kind of unwarranted disparity that guidelines were intended to reduce. We view local courts as arenas in which two sets of sentencing standards meet—formal rational ones articulated by guidelines vs. substantive, extralegal criteria deemed relevant by local court actors. We use statistical and qualitative data from Pennsylvania, a state whose courts have operated under sentencing guidelines for over a decade. Our analysis examines extralegal differences in three county courts' sentencing outcomes, and then documents ways in which substantive rational sentencing criteria are intertwined with defendants' exercise of their right to trial and their race and gender.     

Ethnic origin of the victim as an aggravating factor in sentencing sexual offenders

This article examines R v Jamal Muhammed Raheem Ul Nasir, a Court of Appeal case where leave to appeal against a seven-year custodial sentence for sexual offences against children was refused. The appellant argued that his sentence length was excessive because the judge viewed the female victims’ ethnic and religious origin as an aggravating factor. In light of a number of charities’ condemning the judgment, this article evaluates whether the Court of Appeal made the correct decision, particularly in the wider context of sentencing principles. It also considers whether causing shame to a victim and her family can be regarded as an aggravating factor when sentencing sexual offences, and discusses the circumstances where the victim’s ethnic origin should be taken into account.