关于调整中国刑法结构的思考

There are two problems with regard to the structure of Chinese criminal law. Firstly, the crimes that are defined in the Chinese criminal code are approximately equal to the felonies that are defined in the western criminal codes, while re-education through labor and penalty for administration of public security similar to the misdemeanors and violations in western countries respectively are not included in the Chinese criminal code, and meanwhile the security measures have not been systematized. Secondly, crimes and penalties, except in criminal law, can not be prescribed in administrative laws and economic laws, and such single track system of conviction and sentencing fails to satisfy the current social situation in which the number of mala prohibia has increased so much. The way to reform Chinese criminal law structure: Firstly, it is to establish a double track system, where mala prohibia should be prescribed in the related administrative laws or economic laws; secondly, a comprehensive criminal code should be reformulated in which felonies, misdemeanors, violations and security measures are all included. Liu Renwen, Ph.D, is a senior research fellow at the Law Institute of Chinese Academy of Social Sciences. His major works include: A Preliminary Study of Criminal Policy (2004), Economic Analysis in the Integration of Criminal Law (2007), Crimes of Environment and National Resources (2004); and research articles, such as: Reform of the re-education through labor (Criminal Law Review, 2001), Enhance the quality of death penalty cases through the procedure (New Reports in Criminal Law, 2006).     

An Examination of the Assumption that Adult Businesses Are Associated with Crime in Surrounding Areas: A Secondary Effects Study in Charlotte, North Carolina

Recent Supreme Court decisions have signaled the need for sound empirical studies of the secondary effects of adult businesses on the surrounding areas for use in conjunction with local zoning restrictions. This study seeks to determine whether a relationship exists between adult erotic dance clubs and negative secondary effects in the form of increased numbers of crimes reported in the areas surrounding the adult businesses, in Charlotte, North Carolina. For each of 20 businesses, a control site (matched on the basis of demographic characteristics related to crime risk) is compared for crime events over the period of three years (1998–2000) using data on crime incidents reported to the police. We find that the presence of an adult nightclub does not increase the number of crime incidents reported in localized areas surrounding the club (defined by circular areas of 500- and 1,000-foot radii) as compared to the number of crime incidents reported in comparable localized areas that do not contain such an adult business. Indeed, the analyses imply the opposite, namely, that the nearby areas surrounding the adult business sites have smaller numbers of reported crime incidents than do corresponding areas surrounding the three control sites studied. These findings are interpreted in terms of the business mandates of profitability and continuity of existence of the businesses.     

“受过行政处罚入罪”规定之证成

2013年以来我国刑事司法解释有一明显趋势,即将行为人曾经受过行政处罚的事实作为定罪情节,纳入犯罪成立与否的考量之中。对这一现象,我国刑法学界多从刑事犯罪行为与行政违法行为"质"的差异,或者客观主义刑法观的角度出发予以否定。但是,在我国"定性+定量"的刑事立法模式下,刑事犯罪行为与行政违法行为以"量"的差异为主、质的差异为辅,行政违法性"量的累加"可以产生刑事违法性。"受过行政处罚入罪"的规定综合考虑了行为的客观危害程度和行为人的主观可谴责性程度,不仅不违反罪刑法定原则、禁止重复评价原则和责任主义原则等定罪时应坚持的一些基本原则,还有利于弥补劳动教养废除后的制度空白,调整我国"结果本位"的刑法结构,实现行政处罚与刑事处罚的有效衔接。     

Fatal attraction: An analysis of employee boundary violations in a southern prison system, 1995–1998

Prison employees are trained to maintain their distance from prisoners and to do their job professionally without personal entanglements or abuse of prisoners in any way. Efforts are made to ensure that those who enter the correctional service serve honorably; these efforts, however, do not prevent some prison employees from ending their careers in disgrace. Some employees engage in career-ending infractions whereby they are suspended and/or reprimanded; some are terminated for engaging in inappropriate relationships (or boundary violations) with inmates. This paper examines boundary violations among 508 Texas state prison security staff members disciplined between January 1, 1995 and December 31, 1998.     

论证券行政违法行为的成立要件

近年来,证券领域违法案件频发,证券监管机关作出了大量的行政处罚。然而,行政违法行为成立要件缺失造成了行政处罚证明标准抽象化、归责原则适用混乱等问题。行政违法行为成立要件与犯罪构成要件之间存在亲缘性。建构证券行政违法行为成立要件理论需要做好对刑法犯罪构成要件理论的“扬与弃”的工作,从违法客观方面、违法客体、违法主观方面、违法主体等方面进行规定。违法客体依附违法客观方面。违法客观方面包括违法行为、危害结果以及违法的时间、地点等内容,应以危害结果纳入为原则,不纳入为例外。违法主体是必要条件,但已内含于证券从业要求。违法主观方面,应当充分考虑主观过错在违法认定中的影响。四方面内容在结构上并非是同一平面上的耦合式逻辑,而是一种递进式、阶层式的逻辑结构。     

行刑诉讼交叉案件的裁处机制——以行政权与刑罚权的双重法律关系为视角

中国法体系语境下的行刑诉讼交叉案件的产生,既源自违法与犯罪二元化处理机制中临界点的模糊性,又来自行政机关与刑事诉讼机关职权的交叉重叠,而最根本原因乃在于实体法中行政权与刑罚权的双重法律关系,即行政处罚权与刑罚权在惩罚严厉程度上的递进关系以及刑罚权对行政管理权(狭义)的保障关系。据此,行刑诉讼交叉案件可分为两类:一是以行政处罚行为为诉讼标的的行刑诉讼交叉案件;二是以行政管理行为(狭义)为诉讼标的的行刑诉讼交叉案件。前者的处理应秉持“刑事先行,先刑后行”的规则,后者的处断则应坚持“行政先行,刑事后理”的规则。     

Delinquent histories of adolescents adjudicated for criminal sexual conduct

A content analysis of closed case records from family court examined personal and family history variables for adolescents with sexually abusive behaviors who had been adjudicated for criminal sexual conduct and compared subgroups of adolescents with ( n = 72) and without (n = 80) prior other delinquent behavior. The study's findings indicate that adolescents with and without prior delinquent behaviors differed on a majority of the variables measured in this study. Adolescents with sexual offending behaviors who also had prior delinquent behaviors were older and had higher rates of documented childhood maltreatment, and drug and alcohol use. These adolescents had caregivers with more substance use and abuse problems and more extensive criminal histories. These findings have a number of practice implications when working with adolescents with sexually abusive behaviors. The findings also suggest that comparisons between adolescents with sexually abusive behaviors and other delinquents may be misleading if these subgroups of adolescents with sexually abusive behaviors are not distinguished.     

Inmate Attitudes Toward Treatment: Mental Health Service Utilization and Treatment Effects

This study examined inmate attitudes toward treatment, mental health treatment utilization, and treatment effects that maximize treatment effectiveness. Participants consisted of 278 incarcerated male adult offenders from the Kansas Department of Corrections. Multiple linear regression analysis indicated that inmate attitudes toward treatment were predictive of the number of mental health treatment sessions (dosage) inmates received. Hierarchical linear regression analyses indicated positive help-seeking attitudes were associated with institutional behavior (decreased number and severity of disciplinary infractions) and scores on a measure assessing risk for future criminal behavior; however, the amount of mental health treatment an inmate received (treatment dosage) was associated with problematic institutional behavior (i.e., increased severity and number of disciplinary infractions). These results indicated that treatment dosage and behavioral outcomes were impacted by inmate attitudes toward treatment. As a result, correctional psychologists may be better able to predict which inmates will receive the most benefit from services. Implications of these findings for practitioners and policy makers are discussed.     

Evaluating Community Prosecution Code Enforcement in Dallas,Texas

We evaluated a community prosecution program in Dallas, Texas. City attorneys, who in Dallas are the chief prosecutors for specified misdemeanors, were paired with code enforcement officers to improve property conditions in a number of proactive focus areas, or PFAs, throughout the city. We conducted a panel data analysis, focusing on the effects of PFA activity on crime in 19 PFAs over a six-year period (monthly observations from 2010 to 2015). Control areas with similar levels of pre-intervention crime were also included. Statistical analyses controlled for pre-existing crime trends, seasonality effects, and other law enforcement activities. With and without dosage data, the total crime rate decreased in PFA areas relative to control areas. City attorney/code enforcement teams, by seeking the voluntary or court-ordered abatement of code violations and criminal activity at residential and commercial properties, apparently improved public safety in targeted areas.     

In and out of prison: Do importation factors predict all forms of misconduct or just the more serious ones?

Purpose

This study was designed to investigate whether importation factors predict all forms of prison misconduct and recidivism or just the more serious forms.

Methods

Six importation factors were examined: age, marital status, street gang affiliation, criminal thinking, prior drug abuse, and criminal history. Count data for two high severity infractions (assault, escape), two high-moderate severity infractions (fighting, possession of intoxicants), two moderate severity infractions (refusing programs, stealing), two high severity crimes (assault, robbery), and two moderate severity crimes (DUI, failure to appear) were regressed onto these six importation variables in samples of 2488 (prison infractions) and 1101 (recidivism) male inmates.

Results

The importation variables successfully predicted the four infractions that were rated high and high-moderate in severity and the two crimes that were rated high severity but not the two infractions or two crimes that were rated as moderate in severity.

Conclusions

These findings suggest that importation factors are differentially predictive of more serious forms of infraction and recidivism and that the importation model may have as much to offer the study of community adjustment and recidivism as it does the study of institutional adjustment and disciplinary infractions as part of the more general theoretical construct of criminal propensity.     

A cross-sectional study on expression of anger and factors associated with criminal recidivism in prisoners with prior offences

Objective: The purpose of this study is to determine demographical characteristics leading to crime recidivism and define anger levels and anger expression manners for those who re-commit crime.Method: All the literate inmates in zmit Closed Penitentiary were included in this cross-sectional study. The prisoners were asked to respond to State-Trait Anger Expression Inventory. Their socio-demographic data were collected and a questionnaire was given to them to determine their state of imprisonment, sentence, nature of the crime in which they were involved, their criminal history, their relationship with inmates and prison staff and substance and alcohol use.Results: Of the 438 prisoners, 302 (68.9%) responded to the questionnaires. Crime recidivism among the study cohort was observed to be 37.4%.Mean trait anger, anger out and anger in scores were significantly higher in prisoners with criminal recidivism in comparison with those who did not have prior criminal records. However, mean anger control scores for prisoners with or without criminal recidivism were similar. Unemployment, education level completed at secondary school or below, having committed a crime under the influence of alcohol or narcotics, having been involved in prison fights, having resisted police officers, caused damage in their vicinity when angry and violent crimes were all found to be possible causes of criminal recidivism. Educational level completed at secondary school or below, getting into fights with other prisoners, unemployment and resisting police officers were determined to be the strongest indicators to predict criminal recidivism when all variables were considered according to a logistic regression model.Conclusion: It can be proposed that those who have problems with officials or hostile towards others constitute a risk group for criminal recidivism. If prisoners with criminal recidivism can be helped to identify and control their anger, their risk of committing a new crime can be minimised.     

论产品质量行政处罚对刑法机制的冲击及解决路径

刑法介入产品质量监管的必要性源于产品质量法的局限性.我国产品质量监管中的实际问题是行政执法机关对制售伪劣商品犯罪行为的“以罚代刑”,其根源在于我国立法对产品质量监管中行政权与刑事司法权之间界限标准的不合理,单一的数额标准为行政执法机关“以罚代刑”提供了制度空间.本文认为,要想从根本上解决问题应当去除“以数额入罪”的模式,选择“立法定性、司法定量”的定罪模式,将制售伪劣商品行政违法行为变为轻罪,并配置单一的罚金刑.     

The Hidden Arm of the Law: Examining Administrative Justice in Gun Carry Licensing

Responding to calls to “decenter” American penality beyond the carceral apparatus, this article ethnographically examines administrative process and dissects how it interlocks with criminal justice. To do so, it draws on an admittedly unusual, but theoretically generative, case: administrative gun boards, charged with issuing, denying, revoking, and suspending licenses to conceal carry a firearm. While scholars have examined gun ownership and gun carrying as a social practice, less attention has been paid to gun licensing as a state practice. Drawing on observations of over 900 cases from gun board meetings in two counties in Michigan, this paper examines how administrative process mimics, supplements, and facilitates criminal justice through three mechanisms: procedural pains, in which administrative process resembles criminal justice; parallel punishment, in which administrative process supplements criminal justice through withholding of benefits, entitlements or licenses; and valve‐turning, in which administrative process funnels, or threatens to funnel, claimants into the criminal justice system. Revealing how administrative process and criminal justice become mutually reinforcing, the findings extend and integrate scholarship that shows the material, symbolic, and psychic implications of criminal justice contact, on the one hand, with the increased tendency of administrative contexts to resemble criminal justice institutions, on the other.     

Government Regulation of "Adult" Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects

Municipalities that prohibit "adult" businesses from operating in certain areas have justified these "zoning" regulations by advancing the idea that the presence of the business will have so-called "adverse, or negative secondary effects" on the surrounding community. Most recently, a plurality of the United States Supreme Court has upheld the extension of this doctrine beyond the zoning of adult businesses to the symbolic behavior within them in the form of ordinances banning nudity. This article abstracts and analyzes the methods and major empirical findings of studies conducted by United States municipalities, purporting to detect adverse secondary effects of adult businesses. With few exceptions the methods used in the most frequently cited studies are seriously and often fatally flawed. These studies, relied on by other communities throughout the country, do not adhere to professional standards of scientific inquiry and nearly all fail to meet the basic assumptions necessary to calculate an error rate-a test of the reliability of findings in science. Those studies that are scientifically credible demonstrate either no negative secondary effects associated with adult businesses or a reversal of the presumed negative effect. The implications of the lack of evidence of adverse secondary effects for the regulation of performances within adult businesses are discussed.     

Supervision Intensity and Parole Outcomes: A Competing Risks Approach to Criminal and Technical Parole Violations

Recent scholarship about parole supervision indicates that higher supervision intensity is associated with an increased risk of parole violations. However, parole violations can take many forms—some minor and some serious—and theory suggests that supervision intensity might have differential effects depending upon the type of violation. We use “competing risks” survival models to identify supervision effects on five types of parole violations among 79,082 individuals released from prison in California: absconding, technical violations, drug use, violent offenses, and sexual offenses. We find that supervision effects are strongest for absconding violations. Past sexual offending also triggers significant supervision effects for technical violations, drug use violations, and violent violations. We conclude that parole violation patterns are influenced by parolee behaviors, the amount of attention the state is paying to those behaviors, and official markers of criminal dangerousness that are attached to particular parolees.     

A Theoretical Analysis of Alcohol Regulation and Drinking-Related Economic Crime

Alcohol consumption is widely believed to influence criminal activity, and numerous sociological, criminological, and psychological studies demonstrate an apparent positive correlation between drinking and crime. Using a multiattribute model of offender and victim behavior, this study examines the theoretical effects of changes in the price of alcohol on the incidence of crimes committed for economic gain. It is shown that in the general case price effects do not result in an unambiguous decrease in the rates of crime or victimization even when the models are constructed to impose a bias towards the finding of a causal negative price effect. Using a modified model of the drinking offender that imposes even further structure on the model, it is shown that the realization and magnitude of a negative equilibrium alcohol price effect will likely depend upon the implementation of complementary alcohol control policies. The implications of the theoretical analysis to policy implementation and empirical research are also considered.     

Criminal history inquiries and minority threat in the legal profession: An analysis of law school and state bar admission applications

While all but one U.S. law school and every state bar ask about criminal history on their admissions application, such inquiries vary considerably in the depth of information sought. One potential explanation for variations in the depth of criminal history inquiries among law schools and state bars relates to minority threat dynamics. Drawing on data quantifying the depth of criminal history inquiries for 190 ABA-approved law schools and all state bars, as well as school and state demographics, this study explores the issue for the first time. Negative binomial regressions reveal that law schools and state bars located in states with larger Black and Latino populations employ more probing criminal history inquiries. We also find that this relationship is parabolic—where the minority threat effect is negative in states with a critical mass of Black/Latino residents. Finally, minority threat effects for law school criminal history inquiries are moderated by state bar criminal history inquiries, suggesting that law schools are cued by state bar policies. These results provide some support for minority threat theory, informing debates about the continued use of criminal history inquiries to screen prospective law students and lawyers, and the inclusiveness of the legal profession generally.     

SUPERVISION REGIMES,RISK, AND OFFICIAL REACTIONS TO PAROLEE DEVIANCE*

Parolee deviance has emerged as a central issue in policy debates about crime and punishment in American society as well as in scholarship on “mass incarceration.” Although the prevailing approach to studying parolees conceives of parole violations as outcomes of individual propensities toward criminal behavior (i.e., criminogenic risk), we consider how indicators of individual risk and characteristics of formal social control systems combine to account for reported parole violations. Using data on California parolees, we examine the effects of parolees’ personal characteristics, their criminal histories, and the social organization of supervision on parole violations. We advance the notion of a “supervision regime”—a legal and organizational structure that shapes the detection and reporting of parolee deviance. Three components of a supervision regime are explored: 1) the intensity of supervision, 2) the capacity of the regime to detect parolee deviance, and 3) the tolerance of parole officials for parolee deviance. We find that personal characteristics and offense histories are predictive of parole violations. However, we also find that introducing supervision factors reduces the effects of offense history variables on violation risk, suggesting that the violation risks of serious, violent, and sexual offenders are partially explainable through the heightened supervision to which they are subject. In addition, we find that supervision intensity and tolerance are generally predictive of violation risk. Capacity effects are present but weak. We conclude with a discussion of how the supervision regimes concept illuminates the gap between macro‐ and micro‐analyses of social control.     

Regulatory Enforcement in Local Government in Japan

The Japanese inspectors usually adopt an "informal measure-oriented" style in enforcing violations of regulatory statutes. They prefer administrative guidance with no legally binding effect to compliance orders or criminal prosecution. These formal measures, they think, would erode the cooperative relationship with the regulatee, which is believed essential for cost-effective enforcement. In contrast to that in the United States, the Japanese enforcement process lacks citizen participation and information disclosure, this enabling the inspectors to deal with violations at their own pace.     

Penal Boundaries: Banishment and the Expansion of Punishment

We use this article to argue for greater recognition of legally imposed spatial exclusion—banishment—as a (re)emerging and consequential social control practice. Although the new social control techniques that entail banishment are buttressed by a blend of civil, administrative, and criminal law, they are best understood as punitive in nature. This argument is supported by two empirical findings. First, interviews with the banished indicate that spatial exclusion often has significant negative consequences akin to those identified by Sykes (1958 ) in his seminal account of the pains of imprisonment. Second, court data show that the growing use of civil and administrative banishment has increased the number of criminal cases involving allegations of noncompliance. These findings suggest that analysts of punishment might usefully broaden their focus to include phenomena that combine civil, criminal, and legal authority, and are not defined as punishment by their advocates.