当前重刑犯的特征简析与管理探讨

从我国刑法总则规定的五种主刑和刑法分则的具体规定,以及传统的监狱学理论看,我国的重刑犯,即指主观恶性很大,客观违害性很大,犯罪情节严重或特别严重,被判处十年以上有期徒刑或无期徒刑、死刑(本文特指死刑缓期二年执行)的罪犯。他的本质表现为客观违害性很大,犯罪情节严重或     

论新中国监狱法制建设发展及展望

本文从历史与法制的角度,对新中国监狱战犯与反革命犯和普通刑事犯两类罪犯的改造成就进行分析,揭示了作为初期政策性的"法",一直到真正意义上的监狱法规对新中国监狱罪犯改造的潜在而又深刻的推动作用。从而就法与监狱工作的深层次联系,将罪犯改造的法制建设发展分为狱制前期、中期、新时期三个阶段,并就狱制发展的趋势以及立法展望提出了自己的理解和看法。     

终身监禁的性质与适用

《刑法》第383条中的终身监禁只是不得减刑、假释的同位语,终身监禁是死缓适用的一种情形;《刑法》虽然没有在第50条规定终身监禁,但应当将终身监禁纳入《刑法》第50条的范围内予以理解和适用。被宣告终身监禁的罪犯,实际上存在三种结局:其一,在死缓执行期间故意犯罪,情节严重的,执行死刑;其二,在死缓执行期间有重大立功表现的,减为25年有期徒刑,丧失终身监禁的前提,即只需要执行25年有期徒刑即可;其三,在死缓执行期间,不存在上述两种情形,依法被减为无期徒刑后,终身监禁,不得减刑与假释。但是,《刑法》第383条第4款的不得减刑只能是《刑法》第78条中的可以减刑的例外规定;如果罪犯有重大立功表现因而应当减刑时,则不再执行终身监禁。因此,绝对的终身监禁只有一种情形:被判处死缓并宣告终身监禁的罪犯,在死缓考验期间没有实施情节严重的故意犯罪,且没有重大立功表现,在减为无期徒刑之后也一直没有重大立功表现。对于宣告终身监禁的罪犯可以暂予监外执行。从旧兼从轻原则是罪刑法定原则的重要内容,即使采取从旧兼从轻原则导致量刑畸轻,也不得以不符合罪刑相适应原则为由采取其他原则。换言之,首先应当根据从旧兼从轻的原则确定应当适用的法条,然后再考虑如何实现罪刑相适应原则。根据《刑法》第12条的规定,对修正前的贪污、受贿犯罪不应当适用终身监禁的规定。     

Imprisonment and unemployment: A comment

The current state of research dealing with the relationship between the unemployment rate and the imprisonment rate is assessed, and directions for further research are suggested.     

Expanding the Feminist Pathways Perspective beyond the United States: A Profile of Federal Women Prisoners in Argentina

A large body of knowledge within the criminological discipline has demonstrated that women and girls have distinct social and psychological risk factors that contribute to both their initial onset, and continued engagement, in offending behavior. However, most of this research has focused on U.S. samples of women offenders. Using mixed methods, the current research investigated the offense dynamics and possible risk factors for women’s imprisonment with incarcerated women (246 survey respondents; 12 interviewees) in the Argentine federal penitentiary system. We find that there are some similarities in the characteristics of women prisoners in Argentina and the characteristics of women prisoners in the United States, but also some distinctions, primarily in the prevalence of prior victimization. In addition, our results indicate that federal women prisoners in Argentina who reported serious prior abuse were more likely to have committed crimes against persons in comparison to women without abuse histories. Such a distinction supports the ongoing research investigating women offender profiles beyond U.S. samples.     

The Re-integration Process from the Perspective of Prisoners: Opinions, Percieved Value and Participation

In this article the presence of the rehabilitation goal in the policy of the prison system in the Netherlands will be discussed first. Particular attention will be paid to the question as to why the rehabilitation goal, in spite of the doubtfull status of its impact, still plays a role in the increasing instrumentalist policy of the Dutch criminal justice system. In addition, some limitations of a one-sided 'nothing works' approach of rehabilitation will be discussed. Next, empirical research is examined for what it teaches about the functioning of correctional programmes within the prison system. Special attention will be paid to the attitudes of inmates toward rehabilitation. It will be shown that in spite of a considerable body of research on institutional adaptation, little is known about the dynamics between inmates' attitudes and personal, situational and organisational background variables. In addition, the results of a survey, conducted on the nature and sources of inmates' attitudes towards rehabilitation, will be presented. Finally, this article will offer reflections on the benefits of a process-evaluative approach of correctional interventions.     

法人侵权责任能力的理论预设与制度设计——以法人本质理论为线索

我国民法学界以法人实在说承认法人的独立意志为理由,论证了法人承担侵权责任能力的合理基础,继而对拟制说进行批判,而事实上法人承担侵权责任完全是基于特定利益衡量的立法构造,与其意志的有无没有必然的关联。法人的侵权责任是法人机关的侵权责任,从形式逻辑的角度而言,它与法人的工作人员的侵权责任是有本质区别的,但就立法构造而言二者区分并无实际价值,在法人侵权责任具体承担方式上应该采取让法人机关与法人承担连带责任的方式。     

论司法产品的性质与供给——一个经济分析的视角

司法产品并不必然就是公共物品,司法服务也非必须由政府提供。历史上,政府司法首先是作为统治者的创收手段发展起来的,而非公共服务。市场或社区自身也能够提供非政府的纠纷解决机制。政府司法并不天然优于非政府司法。对于大量不具有公共物品属性的案件,非政府司法能够提供更有效率的服务。当事人的选择自由和竞争机制是非政府司法有效运作的关键。这一机制适用于公共法院,也就是当事人合意选择公共法官制度。后者可能对我国当下的司法改革具有特殊的政策意义。     

The Incapacitation Effect of First-Time Imprisonment: A Matched Samples Comparison

Objectives

The logic of incapacitation is the prevention of crime via the forced removal of known offenders from the community. The challenge is to provide a plausible estimate of how many crimes an incarcerated individual would have committed, were s/he free in the community rather than confined in prison. The objective of this study is to provide estimates of the incapacitation effect of first-time imprisonment from a sample of convicted offenders.

Methods

The data are official criminal records of all individuals convicted in The Netherlands in 1997. Two different analytical strategies are used to estimate an incapacitation effect. First, the offending rate of the imprisoned individuals prior to their confinement in 1997 provides a “within-person counterfactual”. Second, imprisoned offenders are paired with comparable non-imprisoned offenders using the method of propensity score matching in order to estimate a “between-person counterfactual”. Incapacitation estimates are provided separately for juvenile imprisonment (ages 12–17) as well as adult imprisonment (ages 18–50), and for male and female offenders.

Results

The best estimate is that 1 year of incarceration prevents between 0.17 and 0.21 convictions per year. The use of additional data sources indicates that this corresponds to between roughly 2.0 and 2.5 criminal offenses recorded by the police.

Conclusions

The current results suggest that, insofar as imprisonment is used with the primary goal of reducing crime through incapacitation, a general increase in the use of incarceration as the sanction of choice is not likely to yield major crime control benefits.     

Women Prisoners and the Drive for Desistance: Capital and Responsibilization as a Barrier to Change

There is a significant and growing volume of research into the way in which offenders desist from crime and their resettlement and reentry into society following a custodial sentence. As is too often the case in criminological research, women are underrepresented in these areas of investigation. This research aimed to investigate how women in the last 3 months of a prison sentence plan and prepare for their release. Using data generated from qualitative interviews with women prisoners and prison staff over a 13-month period in a closed women’s prison in England, this paper will argue that women prisoners have motivation and desire to desist from crime post-release, but their attempts to plan for release are hindered by a responsibilization discourse that runs throughout the institution and by a severe lack in all forms of capital (social, cultural, economic, and symbolic). This not only results in many women being released with little support in place to help them achieve their aims of a crime-free life in the future but also highlights the problems with a prison system based on male-centered knowledge.     

The Impact Imprisonment has on Women's Health and Health Care from the Perspective of Female Inmates in Kansas

This multimethod study, conducted at the Topeka Correctional Facility during the summers of 2001, 2002, and 2003, investigated the impact of imprisonment on women's health and health care. The researcher hypothesized that 3 independent constructs—(a) extended strain, (b) level of health care received either before or during incarceration, and (c) detrimental social structural influences—could predict the health status of female inmates prior to and during incarceration. Multiple regression analyses conducted on 1 survey sample of 120 inmates revealed that only health care prior to incarceration and extended strain contributed significantly to explaining the inmates' self-perceived health status prior to and during incarceration. When life history interviews with 22 inmates were examined to determine inmates' perceptions of their health status and the health care they had received, prior to and during their imprisonment, qualitative results revealed inmates expressed dissatisfaction with the quality of health care received in prison, as well as the manner in which it was administered.     

Employment After Prison: A Longitudinal Study of Former Prisoners

Finding sustained employment is an important component of the transition from prison to the community for exiting prisoners. Anecdotal reports from former prisoners indicate that most individuals experience great difficulties finding jobs after their release. However, little systematic information is available about the employment experiences of individuals released from prison or the characteristics of former prisoners who are successful in locating employment. Using a causal framework, this paper examines the employment experiences of a multi-state sample of former prisoners, and identifies the individual factors influencing the likelihood of employment after release from prison, using data gathered from interviews with prisoners before and at multiple times after release. Findings indicate that consistent work experience before incarceration, connection to employers before release, and conventional family relationships improve employment outcomes after release. Individuals who relapse to drug use quickly after release, have chronic physical or mental health problems, and are older or nonwhite are employed fewer months after a period of incarceration.     

Justifying Imprisonment: On the Optimality of Excessively Costly Punishment

The criminal punishment literature has focused on justifyingnonmaximal punishments and the use of nonmonetary sanctions.It has not addressed why imprisonment, rather than cheaper formsof corporal punishment, should be the dominant type of nonmonetarysanctions. David Friedman (1999) recently hypothesized that,because convicts lack political influence, it is desirable tomake punishment costlier than necessary to prevent policy makersfrom excessively punishing convicts. This article explicitlymodels this hypothesis and uses simulations to determine underwhat circumstances this hypothesis justifies using imprisonmentrather than cheaper nonmonetary sanctions.     

服刑人员分级处遇制度研究

分级处遏制度是行刑个性化和刑罚人道的重要内容，具有激励服刑人员改过自新的重要功能，同时也是监狱调控服刑人员改造行为建立良好监管秩序的重要手段。分级处遏制度本身具有较强的技术性和专业性，需要精巧的立法设计和科学的实施。而受旧有的行刑观念和制度的影响，我国现有的分级处遏制度还比较粗疏和薄弱，激励机制明显不足，对推动服刑人员的矫正工作相当不利。亟待从立法、运作措施和人员专业化等方面进行完善。     

The Impact of Imprisonment on Marriage and Divorce: A Risk Set Matching Approach

Marriage has a prominent place in criminological theory and research as one institution that has the potential to genuinely foster desistance from a criminal career. Mass imprisonment policies in the United States and elsewhere, therefore, pose a potential threat of increased crime if they impede the ability of ex-prisoners to reintegrate into society by stigmatizing them and limiting their chances in the marriage market. We use a long-term study of a conviction cohort in The Netherlands to ascertain the effect that first-time imprisonment has on the likelihood of marriage and divorce. The results suggest that the effect of imprisonment on the likelihood of marriage (among unmarried offenders) is largely a selection artifact, although there is very weak evidence for a short-lived impact that does not persist past the first year post-release. This is interpreted as a residual incapacitation effect. On the other hand, the results strongly suggest that the experience of incarceration leads to a substantially higher divorce risk among offenders who are married when they enter prison.     

Innocence Lost: A Problem for Punishment as Duty

Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution.