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.     

裁判文书援引学说的基本原理与规则建构

学说的内容实质正当性及其约束法官自由裁量空间的外观进而增强裁判可接受性的功能,是裁判文书援引学说的基本原理,也是建构援引规则的出发点。学说根据其竞争力可以分为通说、主流说、少数说,法官既可以援引通说也可以援引非通说;援引非通说应当成为援引的主流。法官在援引学说时应尽量采用对话技术,尤其是在援引通说时应尽量避免对学说进行大篇幅的“复制与粘贴”;应尽量援引不同体裁的代表性作品以体现学说的数量优势外观。学者姓名承担了标识学术产品的质量担保功能、“商誉”功能与司法修辞功能,学说出处具有定位学者学说发展脉络等功能,援引学说须注明姓名与出处。裁判文书援引学术作品实质上是法官“购买”学术产品的行为,它将刺激处于供给侧的学者主动生产实务所需的产品,继而促成学术与实务的良性互动。最高人民法院可以考虑出台有关裁判文书援引学说的具体规则指引。     

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.     

论法官惩戒委员会的法律地位

设立法官惩戒委员会,并由该委员会对法官履职是否构成违法审判提供专业意见,是完善法官惩戒制度的重要内容和制度创新。对法官惩戒委员会的定位与职能,学界的建议与实际的制度建构并不完全一致。各地在设立法官惩戒委员会的过程中,因对其法律地位的理解不深、不透甚至存在偏差,导致其处于“无功能”的状态。作为一个全新的制度设计,在有域外先例可供借鉴的情况下,吸收其有益经验,再根据中国现实国情来建构,是制度建设的有效途径。当前,应根据修订后的我国《法官法》对法官惩戒委员会的相关规定,在明确法官惩戒委员会法律地位的基础上,在设立主体、委员构成、设立模式上下功夫,并做好与其他职能部门的衔接工作,确保法官惩戒委员会依法建构并保证制度得以顺利运行。     

Studying Discretion in the Processes that Generate Criminal Justice Sanctions

This paper presents a typology of discretion that differs from the standard typology of discretion in the legal literature: Type A discretion, which is the generally recognized discretion of individual actors to make decisions within a set of laws and rules, and Type B discretion, which is the crafting of laws and setting of rules in the first place. An analysis using aggregate data from 1992 to 2002 points to the prosecution stage as the primary source of Type A discretion that contributed to the massive increase in incarceration during this period. To understand how this could happen, this paper argues that actions need to be linked to outcomes. We identify three key outcomes of the sanctioning process—crime control, justice (guilt/innocence), racial disparity (fairness)—that deserve more attention from social scientists.     

Picking battles: Correctional officers,rules, and discretion in prison

To outsiders, prisons vacillate between visions of regimented order and anarchic disorder. The place of rules in prison sits at the fulcrum between these two visions of regulation. Based on 131 qualitative interviews with correctional officers across four different prisons in western Canada, we examine how correctional officers understand and exercise discretion in prison. Our findings highlight how an officer's habitus shapes individual instances of discretionary decision‐making. We show how officers modify how they exercise discretion in light of their views on how incarcerated people, fellow officers, and supervisors will interpret their decisions. Although existing research often sees a correlation between “rule‐following” by incarcerated individuals and official statistics on such misdeeds, our data highlight that official statistics on rule violations do not easily represent the rate or frequency of such misbehavior. Instead, these numbers are highly discretionary organizational accomplishments. Our findings advance an appreciation for correctional officer discretion by focusing on the range of factors officers might contemplate in forward‐looking decisions about applying a rule and how they rationalize the nonenforcement of rules.     

Court improvement of foster care and adoption projects:Ncjfcj Survey Report

Officials from 48 states and the District of Columbia in 1994 accepted federal funding from the U.S. Department of Health and Human Services to help improve courts' handling of cases involving child abuse, neglect, foster care and adoption. Through a survey of participating states, members of the National Council of Juvenile and Family Court Judges have been analyzing common themes found in state Court Improvement of Foster Care and Adoption Projects. This article examines key survey results.     

USING RANDOM JUDGE ASSIGNMENTS TO ESTIMATE THE EFFECTS OF INCARCERATION AND PROBATION ON RECIDIVISM AMONG DRUG OFFENDERS*

Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is rearrested after release. Few studies have taken advantage of the fact that, in some jurisdictions, defendants are assigned randomly to judges who vary in sentencing tendencies. This study investigates whether defendants who are assigned randomly to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges. We track 1,003 defendants charged with drug-related offenses who were assigned randomly to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records across a 4-year period after the disposition of their cases to determine whether they subsequently were rearrested. Our results indicate that randomly assigned variations in prison and probation time have no detectable effect on rates of rearrest. The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.     

行政自由裁量权概念的迷思与匡正

行政自由裁量权概念的发达除客观需要之外,还有人为的因素,为行政扩张服务甚至为了逃避司法审查。然而,行政自由裁量权是一个可以被内化或转化甚至淹没的概念,虽然它是事先确定的一个指引但却是一个错误的指引。国家主权理论的衰微,行政权的弱化,行政种类多样,裁量空间的压缩以及部分裁量被“不确定法律概念”涵摄,行政自由裁量权风光不再。让行政自由裁量权概念在行政法领域尽快消失。以行政法的“裁量性规范”,将行政“裁量性事实”放在行政行为下考量,通过对其目的性、公益性以及合法性进行的判断,使其获得正当性基础。行政诉讼以是否应该作为、是否超越职权、是否滥用职权为司法审查内容,以确认判决、撤销判决、确认无效判决为判决方式,取消现行的变更判决。     

A ‘double edged sword’: discretion and compulsion in policing domestic violence

Policing domestic violence is a complex area in which there are divergent views about the extent to which front line police action should be mandated by legislation and guidance. This study set in Victoria, Australia raised questions about the balance between discretion and compulsion in policing domestic violence through researching the implementation of the Code of Practice used to respond to domestic violence incidents. The project team interrogated aggregate data from the police database on family violence and also interviewed 125 police members (60 sergeants and 65 constables) to explore the attitudes to the Code of Practice and policing domestic violence. The findings reveal that discretion within a range of options is circumscribed. Variable understandings of the nature of domestic violence and the role of risk assessment and management suggest that constrained and guided discretion may be required to achieve optimum effectiveness in policing responses to domestic violence.     

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.     

The Meaning of Home: A Chimerical Concept or a Legal Challenge?

'Home' is not an easy concept to pin down. Although the term is instantly familiar, and the physical reality of home is an important and omnipresent feature of our everyday lives, the legal conception of home has received surprisingly little attention. The relative neglect of home is particularly striking, however, in light of the substantial body of research which has been carried out on the subject of home in other disciplines. This article discusses the meanings of home which have evolved from interdisciplinary research. It is argued that this research could provide a starting point for the development of a more clearly articulated socio–legal understanding of the meaning and value of home to occupiers. It is suggested that a legal concept of the meaning of home would be useful, for instance, when considering the conflict of interests between the occupiers of a property 'as a home', and other parties with 'non–home' interests in the property, for example, creditors. This article seeks to identify some of the values of home which might inform a legal concept of home, and so be 'weighed in the balance' on the occupier's side when decisions involving conflicts between home interests and commercial interests are considered.     

证明力规则检讨

中国的司法实践对证据的证明力表现出异乎寻常的关注,呼唤证明力规则、创造证明力规则并实践证明力规则。然而,当下的证据法学界对证明力规则往往持一种简单化的批判态度,其对于证明力规则的理性总结与学理思考相较于司法实务界倾注的努力不相适应。在以证明力为导向的证据法中,证明力规则的产生是一种必然。在证明力规则问题上,中国证据法学者在理论层面缺乏主体意识,但法律条文以及司法实践却显示了相当程度的主体性并保持了韧性。     

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。     

裁量基准的正当性问题研究

现代法治背景下,伴随着行政裁量治理转型而大量涌现的裁量基准.日益成为一种普遍的行政法现象和创新的行政自治制度。考察裁量基准的正当性基础。除了其本身具有限定裁量范围、防止"同案异判"而有损个案正义的内在功能之外,直接源于西方限制性授权理论的发展。裁量基准作为一种解释性行政规则,对下级行政机关及公务员存在当然的拘束力,并具有一定的外部效力,可作为行政执法的依据。但只要说明正当的理由,仍可以逸脱裁量基准的边界,以实现个案正义。为保证裁量基准的正当性,在制度上应引入比例原则,完善行政参与和公开公布机制。     

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。     

Turning the Witness Stand into a Speaker's Platform: Victim Participation in the Norwegian Legal System as Exemplified by the Trial Against Anders Behring Breivik

In this article, we investigate how victims pursue legal participation when they are confronted by legal barriers and dilemmas that arise from tensions between legal formality and lay expectations and contributions of legal proceedings. We use the trial against Anders Behring Breivik as a case. Breivik placed a bomb in Norway's Government District before he shot and killed 69 people on a small island. We analyze interviews with 31 victims who testified against Breivik in court. We argue that the circumstances of the trial against Breivik can be characterized as “ideal” in terms of victims’ rights. The exceptionality of this case facilitates a focus on unquestioned obstacles to victim participation concerning the professionalization of the legal system. We question the presumption prevalent among some theorists that the professionalization of the legal system excludes lay participation, by arguing that legal formality both alienate and empower lay participation.     

自由裁量论研究——以德沃金自然法学和包容性实证主义法学中的自由裁量论为视角

在法官造法意义上的“自由裁量论”争论中，德沃金认为司法过程实际是法官们在法律规定的幅度内依法行使自由裁量践行裁判，反对法官造法意义上的“自由裁量论”。所有的法律实证主义者都同意法官造法意义上的“自由裁量论”，基于对法律效力的渊源类判准和内容类判准的不同理论主张，包容性实证主义法学与排他性实证主义法学在此种“自由裁量论”适用空间上也存在着极大差异，渊源类判准及内容类判准适用后法官的“自由裁量权”的不同适用空间也是包容性与排他性实证主义法学的理论分野所在。     

The Role of Supervising Judges in the Granting of Parole in France: A Critical Evaluation

Since World War II, France has sought to decentralize and individualize its correctional system. The major change in the process was the creation of a new judicial role, that of Supervising Judge, who would incorporate both judicial and correctional roles. Until 1972, paroles were granted solely by the Ministry of Justice in Paris. But following legislative reforms in 1970 and 1972, Supervising Judges were given increased responsibilities in these matters. As a result there has been an increase in the total number of paroles awarded since 1972.

The hoped-for reforms met with strong opposition from correctional authorities, who perceived Supervising Judges as usurping their authority. The reforms were also opposed by some trial judges who saw them as interfering with the traditional role of courts, particularly in the sentencing of offenders. The ambiguous nature of the role itself, neither clearly administrative nor clearly judicial, has contributed to the problem in the development of the institution.

A major weakness in the present system is the lack of a strong administrative infrastructure which prevents Supervising Judges from operating effectively. Few judges are assisted by counselors, parole officers, or even clerks, who are a necessary part of carrying out such broad responsibilities. Supervising Judges have been the target of public criticisms for “coddling” criminals. Since they have little independence within the judiciary, their ability to function without government pressure is limited. There is, therefore, a temptation on the part of many to play it “safe” in order not to displease the public and the judicial hierarchy. While the survival of the role itself does not appear in danger, it may be limited by further legislative restriction of its authority.