Courts and sentencing research on contemporary China

As a leading player in the international community and the projected economic powerhouse in the twenty-first century, China's significance in the international community has been recognized around the world. The construction of its legal system, particularly the criminal justice system, has also received increasing global attention. As the cornerstone of the criminal justice system, the courts and sentencing laws and practices underlie many of the fundamental ideas of a fair and just legal system. This article reviews research on courts and sentencing in contemporary China published after 1990, focusing on the following three areas: (1) research on law and legal reforms with regard to courts and sentencing; (2) research on the determinants of criminal sentencing; and (3) research on capital punishment.     

Damaska and the Faces of International Criminal Justice

Mirjan Damaka 's scholarly publications provide important insightsfor the analysis of systems of criminal justice at the internationallevel. This is particularly true for his major book: The Facesof Justice and State Authority – A Comparative Approachto the Legal Process. The book develops ideal types, or models,of the structure and the function of government. As far as thestructure of government, the ideal types of hierarchical andcoordinate officialdom are contrasted with one another. Withregard to the function of government in society, two other mutuallyexclusive ideal types are developed: the ideal type of the purelyreactive state and that of the purely activist state. In thepurely reactive state all state activities are essentially aform of dispute resolution between individual citizens. Consequently,all proceedings take the shape of a contest between two parties.In the reactive state, on the other hand, all law is an expressionof state policies. This entails that all proceedings are essentiallyan official inquiry enabling the state to implement its policies.The four ideal types call for several observations, one of thembeing that, at the international level, there is no authoritythat can be compared to a state. Setting up international criminal courts requires choices withregard to the structure and function of authority. Internationalhuman rights instruments provide no guidance as to the natureof the choices to be made. In particular, they do not indicatewhether the legal process should be structured as a contestbetween two parties or as an official inquiry. The same is truefor empirical evidence. An analysis of the structures of authority in internationalcriminal courts reveal that they represent hybrids of the hierarchicaland the coordinate ideal types of officialdom. The fact thatthese courts are unitary courts has a profound effect on evidentiaryarrangements. The most important issue raised by the exposition of ideal typesof The Faces of Justice concerns the relationship between thegoals of international criminal justice and the appropriatelegal process to serve their realization. Goals of a conflict-solvingnature are best served by a legal process structured as a contestbetween two parties and goals related to the implementationof policies by a legal process structured as an official inquiry.It is therefore essential to determine what goals are beingpursed by international criminal courts. One may distinguishhere between goals that international systems of justice mayor may not have in common with national systems of criminaljustice. The pursuit of the traditional goals of criminal justicecommon to international and national systems of justice doesnot provide compelling reasons to prefer either a contest modelor an inquest model of the legal process. This is different,however, for the idiosyncratic goals of international criminaljustice that set apart international systems of criminal justicefrom national systems. The pursuit of these goals makes it desirablethat historical facts are established as accurately as is possiblein the given circumstances. They are, therefore, best servedby a legal process that takes the shape of an official inquiry.In the hybrid type of procedure adopted by the ICTY there isinsufficient clarity about the procedural status of the peculiargoals of international criminal justice as well as about theuse of procedural means to pursue them. This entails that itis not really possible to determine whether this hybrid representsa success. Hybrid types of procedure cannot truly exist withoutadopting a view with regard to the impartiality of judges thatis inspired by standards enshrined in international human rightsinstrument rather than those that are characteristic for thelegal process shaped as a contest between two parties.     

Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers,Elders, Community Representatives,and Indigenous Court Workers

Indigenous sentencing courts are now an established form of innovative justice practice in most Australian jurisdictions. Whether such processes, which involve the participation of local community elders or representatives in sentencing an offender, provide a “better” form of justice is still up for debate. Recidivism analyses have yet to find that these courts are more likely to reduce reoffending than their mainstream counterparts. Some scholars argue that this is not the sole purpose of the courts and that other measures of “success” should be utilised when evaluating their performance. This article uses interviews with judicial officers, elders, community representatives, and Indigenous and non‐Indigenous court workers to explore what the courts are seeking to achieve and how that translates into a different form of doing justice.     

Extraterritorial criminal jurisdiction: Its impact on criminal justice

Public international law recognizes the right of states to protect themselves and their subjects against threats and damage from within their territory and outside. In the international sphere, the means and methods of national protection are restricted by the extraterritorial jurisdiction of courts and the laws they enforce.Criminal justice today is being confronted on an ever increasing scale by international criminal offenses that impinge on domestic concerns: drugs, securities and financial manipulations, money laundering, and terrorism, to mention only a few. This article discusses some of the issues that arise under the United States Constitution when criminal justice agencies are called upon to enforce U.S. laws beyond U.S. territorial limits. The principles of extraterritorial jurisdiction are discussed along with a number of United States court cases pointing to the importance of this new area of criminal justice.     

From Calculated Cruelty to Casual Violence – The United Nations War Crimes Commission and the Prosecution of Torture and Ill-Treatment

The article looks at the records of both the United Nations War Crimes Commission (UNWCC) and national courts with respect to the post-World War II prosecution of the crimes of torture and ill-treatment. It illustrates how the UNWCC and national courts dealt with the relevant legal questions, applicable laws, crimes at hand, as well as issues of retroactivity and defenses. The article also discusses the UNWCC’s contribution to the development of relevant international law, both in terms of state practice and precedent. Finally, it acknowledges the legacy of the UNWCC and post-World War II prosecutions, which constituted a collaborative effort to bring perpetrators of international crimes to justice.     

Some reflections on the legitimacy of international trial justice

This paper addresses a number of interrelated conceptual difficulties that impact adversely on the ability of international criminal trials to deliver outcomes perceived as legitimate by victims and communities in post-conflict states. It begins by exploring the extent to which those moral justifications for punishment espoused by international courts are instrumental in marginalizing the aspirations for justice of victims and victim communities, and suggests how a greater appreciation of the sociological context of punishing international crimes can contribute towards an improved understanding of normative practice. The paper then examines the relationship between perceptions of international crime and punishment, and the broader issue of whether international criminal law provides an appropriate normative structure for giving effect to those universal humanitarian values concerned with punishment in an increasingly pluralistic world. Finally, the paper considers how the theory and practice of punishing international crimes can more effectively satisfy both local and global aspirations for post-conflict justice through enhancing the transformative capacity of international criminal trials.     

区际冲突法中的公共秩序保留

公共秩序保留作为国际私法的一项重要制度,其直接功能是维护法院地的社会公共利益、法律的基本原则以及基本道德观念,而从法伦理的性质来看,其最终目的是为了实现法律的实质正义,匡正形式正义的不妥当性。区际法律冲突是由于法域间存在不同法律制度、社会利益和道德观念而产生的,在运用冲突法解决区际法律冲突时,仍然遇到适用外域法的结果与法院地法的社会公共利益相违背,违反公平和正义的情形,因此,有必要运用公共秩序保留制度来避免这种结果的出现,尤其是在我国,区际法律冲突与国际法律冲突十分接近,公共秩序保留制度的运用显得更为重要。另外,在同一时空,在公共秩序的价值评判标准的运用上,区际冲突法应当与与国际私法完全一致。也就是说,应当采用“完全适用论”。     

日本涉外民商事管辖权制度初探

日本法院分为四级简易法院、地方法院、高等法院和最高法院。《日本民事诉讼法》中的许多规则用于确定国际管辖权问题都不是很恰当,判例在国际民商事管辖权领域里起着相当重要的作用。最高法院在1981年10月16日做出的判决是关于日本法院国际管辖权的指导性判决,它确立了国际民商事管辖权的一般标准,即“正义和合理”标准。管辖权的排除主要表现在以下方面法院选择协议、仲裁协议以及主权和外交豁免。在实践中,下级法院创设了有关国际管辖权的一项规则,即“特殊情势主义”。对于外国的未决诉讼、不方便法院原则、择地行诉和禁诉命令制度,日本的立法或实践以及学者的观点富有特色。     

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.     

效率与公正之平衡:国际商事仲裁内部上诉机制

对于因错误裁决而遭受巨大风险损失的当事人而言,一裁终局并非国际商事仲裁的优点。他们通常会寻求国内法院的司法救济,因此上诉机制的缺失并不能保证国际商事仲裁的终局性和效率。现行司法救济程序不但难以有效纠正错误裁决,反而会严重破坏国际商事仲裁的种种优点。建立选择性仲裁内部上诉程序在一定程度上既有助于提高国际商事仲裁的效率又能保证裁决更加公正。     

Efficient,Fair, and Incomprehensible: How the State “Sells” Its Judiciary

Socio‐legal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply‐side,” perspective. Focusing on the state's efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state's services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades‐long effort to displace local justice systems.     

Sex and Experience: Modeling the Public’s Perceptions of Justice, Satisfaction, and Attitude Toward the Courts

The purpose of the present study is to examine the influence that sex has on the interconnection between justice, satisfaction with the courts, and attitudes toward the courts. Using national level polling data, the results show that different forms of justice coalesce into a latent measure of justice. Further, the results show that sex differences in our latent measure of justice do exist. In addition, those with experience with the course have a negative attitude toward the court system. Finally, the results show that the impact of justice on attitude toward the court system is partially mediated by satisfaction with the court. Policy implications are discussed.     

Legal Hybridity,Trust, and the Legitimacy of the Shari'ah in the Bangsamoro

Legal hybrids have the potential to address justice and development issues in both conflict and postconflict settings. Using the Philippine Shari'ah court system as a case study, this study demonstrates that state hybrids suffer from legitimacy and capacity issues that also constrain their ability to deliver effective justice services and respond to conflict challenges. Forging cooperative networks between secular courts and Shari'ah courts and between local justice personnel and central justice authorities can enhance the effectiveness and legitimacy of a formalized legal hybrid. This can assist in addressing the justice deficit that fuels the cycle of conflict and sustain peacebuilding efforts postconflict.     

Introduction: Problem‐Solving Courts

Problem‐solving courts have become a significant feature of the U.S. justice system, and their popularity appears to be growing internationally with courts under way or in development in countries such as Australia and Great Britain. Drug courts are the most visible type of problem‐solving court, but other varieties are beginning to take hold. Mental health courts, domestic violence courts, and community‐based courts among others are beginning to handle a considerable portion of the legal workload in many jurisdictions. Criminal law violations as well as neighborhood conflicts and interpersonal disputes are increasingly being referred to problem‐solving courts rather than to traditional criminal or civil courts.     

An Important form of Improvement of the Professional Skills of Justice Personnel

In accordance with the joint decree of the CPSU Central Committee and the USSR Council of Ministers of July 30, 1970, "On Measures to Improve the Work of Judicial and Procuracy Organs," and Decree No. 640 of November 12, 1970, of the RSFSR Council of Ministers, permanent republic-wide courses for improving the qualifications of justice personnel in the RSFSR have been organized in that federation. Here members of supreme courts of autonomous republics, members of territorial, regional, city, and national area courts, presiding judges of district (or city) people's courts, people's judges, consultants of departments of justice and of courts, notaries, and defense attorneys will undergo retraining. Branches of the republic-wide courses for bailiffs, office heads, secretaries of courts and hearings, clerks, and inspectors are being established in affiliation with the ministries of justice of autonomous republics and the justice departments of the executive committees of territorial and regional Soviets of working people's deputies.     

Lifting the cover on drug courts: evaluation findings and policy concerns

Drug treatment courts emerged in 1989 as a court-based solution to an enormous increase of drug-related arrests. Since their inception, drug treatment courts have been subject to empirical and process evaluations to provide quantitative and qualitative data regarding their effectiveness. This article reviews the extant literature on the effectiveness of drug treatment courts and discusses findings regarding various components of the criminal justice system. It is argued that based on empirical evaluation findings, drug treatment courts have achieved success in lowering rates of recidivism among drug offenders, despite problematic methodological and analytical concerns. This article also presents key components and agents of drug treatment courts and discusses their impact and relevance to policy creation and adaptation. It is suggested that when combined with empirical evaluations, process evaluations provide great insight into the drug-treatment-court dynamic. This article concludes with a discussion of the implications of drug treatment courts for justice policy.     

Diverting and Abdicating Judicial Discretion: Cultural, Political, and Procedural Dynamics in California Juvenile Justice

Although tensions between substantive and formal rationality in the adult criminal justice system have received a great deal of attention, the existence of these tensions in the juvenile justice system has received little scholarly consideration. I seek to remedy this gap by exploring how punitive policies associated with the war on crime impact the formal and informal process of justice, the court community and work group, and the exercise of discretion in the juvenile courts. Drawing on qualitative data collected in three juvenile courts in Southern California, I identify the mechanisms by which prosecutors divert judicial discretion from the traditional rehabilitation-oriented bench officers to bench officers who are more accepting of the criminalization of juveniles. In addition, I investigate how and why rehabilitation-oriented bench officers at times abdicate their decisionmaking authority and make rulings that contradict their own assessments. My findings suggest that as the war on crime is extended to youth, the juvenile courts increasingly share the criminal courts' emphasis on offense rather than offender, enhanced prosecutorial power, and adversarial relationships within the court.     

From Poisson to the present: Applying operations research to problems of crime and justice

In the 1830s Siméon-Denis Poisson developed the distribution that bears his name, basing it on the binomial distribution. He used it to show how the inherent variance in jury decisions affected the inferences that could be made about the probability of conviction in French courts. In recent years there have been a number of examples where researchers have either ignored or forgotten this inherent variance, and how operations research, in particular mathematical modeling, can be used to incorporate this variance in analyses. These are described in this paper, as well as other contributions made by operations research to the study of crime and criminal justice.     

The role of prosecutors in ensuring human rights compliant responses to terrorism

Since 9/11 the threat from terrorism has been regarded as ‘exceptional’, a threat that requires military and sometimes even extra-judicial responses. But experience has shown that these responses can have unintended and counterproductive results. Many experts now believe that criminal justice and rule of law-based responses to terrorism are often more legitimate, effective and sustainable. The paper argues that prosecutors have a vital role to play in promoting appropriate criminal justice responses to terrorism. Yet with no international court with jurisdiction over terrorist crimes, prosecutors carry the primary responsibility to work with their local law enforcement agencies to bring terrorist suspects to justice before national courts, while ensuring that no misuses or abuses of authority have occurred. To deliver on this mandate, prosecutors must remain vigilant and ensure that the counter-terrorism actions of police, corrections and other law enforcement authorities are lawful and respectful of human rights. This will often require immense courage under fire.     

Teen Court: What Jurors Can Tell Us About the Process

Teen courts are on the increase throughout the United States. These courts provide an opportunity for youth offenders to receive sentences from their adolescent peers rather than from an adult panel or judge. Yet, we know t very little about the teen jurors' perspective or whether their sentences reflect restorative justice principles. In more than 100 youth juror surveys, t teens describe their experiences as they develop sentences consistent with restorative justice tenets. Through their participation, youth jurors gain practical knowledge about and respect for the judicial system. The efficacy of the sentences is validated by high offender sentence completion.