Judges’ views on evidence of genetic contributions to mental disorders in court

This preliminary analysis assesses how judges view the use of behavioral genetics evidence on genetic influences to mental disorders in court. Twenty-one semi-structured interviews, analyzed using constant comparative analysis, were conducted with California trial court judges. Most judges reported the beneficial effects of this evidence being presented in court, particularly as a mitigating factor for sentencing. Yet some judges viewed it as an aggravating factor and expressed concerns about genetic privacy. Judges described initial reactions to being potentially presented with evidence on genetic influences to mental disorders as apprehension, curiosity, and sympathy. Judges also reported putting significant trust in experts on these issues. Findings suggest some judges are skeptical of this evidence, but largely open to its presentation. Sympathetic reactions may result in mitigating attitudes of some judges. As judges significantly trust experts, some judges could also be overly trusting of genetic evidence and expert opinion on these issues.     

GENDER AND IMPRISONMENT DECISIONS

Guidelines sentencing data from Pennsylvania for the years 1985–1987 are analyzed to assess the influence of gender on judges' imprisonment decisions. These data provide detailed information on offense severity and prior record, permit statistical controls for other variables thought to affect imprisonment decisions, cover a fairly comprehensive list of common-law offenses (with adequate sample size), and contain judges' dispositional-departure reasons for sentences outside the guidelines schema. The data—analyzed with additive and interactive models–indicate that gender (net of other factors) has a small effect on the likelihood of imprisonment toward lesser jailing of female defendants but has a negligible effect on the length-of-imprisonment decision. Observations and interview responses from selected judges help to clarify the ways in which judges' sentencing practices are gender linked. Together, the statistical and the qualitative data suggest that the sentencing practices of judges are driven by two main concerns, blameworthiness (e.g., as indicated by prior record, type of involvement, remorse) and practicality (e.g., as indicated by child-care responsibility, pregnancy, emotional or physical problems, availability of adequate jail space). Based on our findings, we suspect that when men and women appear in (contemporary) criminal court in similar circumstances and are charged with similar offenses, they receive similar treatment. A major question from a policy perspective is, when gender disparities in sentence outcomes do arise, are the disparities warranted or unwarranted?     

A Study on Improvement of Criminal Sentencing in Korea: Determinants in Fraud Cases

The primary purpose of this study is to investigate the process of judges' sentencing in Korea. Drawing on an empirical data set of the fraud cases, the study proposes (1) to identify the determinants of judges' sentences (2) to contribute to the development of a methodology for the study of sentencing by showing how to conceptualize abstract research questions and finally (3) to identify the scope of an individual judge's discretion. The results of data analysis reveal several interesting points. First, there exists considerable discrepancy in sentencing among individual judges. Such a problem strongly suggests that it is necessary to reform and renovate the current sentencing system so as to guarantee more reasonable sentences. Second, the most important factor determining sentencing is the quantity of prosecution that prosecutors demand. Based on this result, it might appears that Korean prosecutors faithfully execute their jobs to defend the public good. However, it is also quite possible that the defendant is not able to challenge the prosecutor effectively in the trial process. If this is the case, it deserves serious attention, especially in Korea where a publically-sponsored defending attorney is provided only on very limited occasions. Because this study is being based on a limited number of cases (313 fraud cases), the findings should not be over-generalized. To make sound and proper generalizations, more cases need to be analyzed.     

Prison sentences: last resort or the default sanction?

ABSTRACT

This paper discusses the sentencing purposes for penal penalties, judges’ perceptions of sentencing purposes and prison sentences, and the effects of penal sanctions. We examine judges’ positions towards different penalties, with a focus on imprisonment, since their views on the different penalties are related to their sentencing decision-making. Understanding these views is then critical for several practical and political purposes, including bridging the gap between academic discourse and legal practice. We accessed judges’ views on penal sanctions through a questionnaire and an interview. Our sample is compounded by the judges of the criminal courts from the three major cities in Portugal. Despite the most recent criminological empirical knowledge, judges valued imprisonment as the most adequate sentence, both for different crimes and for different judicial purposes. This result is not consistent with viewing imprisonment as a ‘last resort’ solution. Indeed, we did not find this ‘last resort’ position in our data, and it is not apparent in the judicial statistics on imprisonment rates. Our data highlight the importance of increasing judges’ training on criminological and sociological issues as well as the importance of changing the influence of their personal beliefs regarding penal sanctions into research-based positions.     

Punishment within Prison: An Examination of the Influences of Prison Officials’ Decisions to Remove Sentencing Credits

Despite considerable research directed toward understanding the factors that affect punishment decision‐making leading to imprisonment, few studies have examined the influences of punishment decisions within prisons. Punishment decisions made within prisons can affect an individual's liberty during their imprisonment and/or the timing of their release from prison if the punishment results in the loss of sentencing credits or influences parole decision‐making. Moreover, if punishment disparities result from these decisions, then some offender groups may endure a greater loss of liberty relative to others. In this study, we examine the factors that influence prison officials’ decisions to remove sentencing credits in response to prison rule violations. Analysis of collected data from a Midwestern state prison system reveal that prison officials are primarily influenced by the seriousness and type of the rule violation, along with an inmate's violation history. Other relevant factors include those proximately connected to an inmate's risk of subsequent misbehavior such as gang membership and those that are linked to practical consequences and constraints associated with the organizational environment and particular inmates such as the proportion of their sentence an inmate has served and whether an inmate has mental health problems.     

Subjective Proximity to Crime or Social Representations? Explaining Sentencing Attitudes in Switzerland

Lay sentencing attitudes are considered in the light of two theoretical perspectives. The first perspective views sentencing attitudes as parts of broader sets of social representations anchored in one’s position in the social structure. The second perspective explains sentencing attitudes by their subjective experiences of crime. This paper tests both theories by performing a series of multiple regressions on two dimensions of sentencing: punishment goals and severity of punishment. Empirical data comes from a quantitative survey conducted in Switzerland. Findings reveal that indicators of subjective proximity to crime largely account for sentencing attitudes. Nevertheless, social representations of crime measured by causes of crime also have a significant impact on sentencing attitudes. Implications of these findings for sentencing in Western democracies are discussed.     

Creative Death Penalty Reform in China: The Case of Drug Transportation

China's criminal justice system has, for decades, been consistently notorious as one of the world's most punitive. Recent reform of the nation's decades‐long harsh criminal justice policy to instead balance severity with greater leniency has given reformist‐minded judges and legal experts some cause for optimism. However, it has also created a judicial dilemma in determining how to apply this more lenient ethos in sentencing some capital crimes. This is particularly the case for the capital crime of transporting drugs, which is the focus of this article. This article reveals how reform can be achieved through skillful legal maneuvering for a crime category that is caught between two contesting views of the social benefits of punishment.     

Juvenile Court Judges' Perceptions of What Factors Affect Juvenile Offenders' Likelihood of Rehabilitation

An instrument was developed to measure whether judges perceive the likelihood of rehabilitation to be influenced by extra‐legal factors. A self‐administered questionnaire was sent to 1,040 juvenile court judges across the United States. Two indices‐extra‐legal and legal‐were created to measure the relationship between judges' perceptions and the factors they consider in their transfer decisions. Primary analysis used frequencies, cross‐tabulations, and measures of association. The factors that judges may consider in their transfer decisions are specified and vary according to state statutes. Extra‐legal factors are never included in the statutes as factors that may be considered. Nonetheless, the findings suggest that judges consider extra‐legal factors in determining an offender's likelihood of rehabilitation. The results suggest that both male and non‐minority judges' perceive that extra‐legal characteristics affect an offender's likelihood of rehabilitation. All judges seem to believe that family structure and prior record are almost equally important factors in determining offenders' likelihood of rehabilitation. Thus, although judges consider legal factors in determining an offender's likelihood of rehabilitation, they also include criteria not explicitly permitted by law.     

刑事案件精神病鉴定实施情况调研报告

本文以法律职业群体和司法精神病学鉴定专家为调研对象,就刑事程序中的精神病鉴定及相关问题进行了调研,通过运用访谈、问卷、阅卷、调取司法统计数据等实证研究方法对目前我国刑事程序中精神病鉴定的现状、问题及成因展开了研究.研究的主要问题包括司法精神病鉴定主体与鉴定管理体制,鉴定程序的启动,公安司法人员对鉴定意见的审查、判断,对...     

Presentence Reports

This study investigated the use made by judges of background information provided in presentence reports in reaching their sentencing decisions. The presentence reports were furnished in a number of modified forms during an experimental manipulation in a real-life setting. By obtaining judges' provisional decisions during their reading of the report, along with their indications of what they found useful, the influence of different sections of information in the report was determined. All sections. were used by judges to some extent. The recommendation section was analyzed in some detail; while there was high agreement between the probation officer's recommendation and the judge's final disposal, judges tended to rate the recommedation low in terms of usefulness. However, analysis of changes to intended disposals, which occurred during reading of the reports, indicated that these recommendations were in fact quite influential, and even when there was not perfect agreement the recommendation produced a high frequency of shifts in the final disposal, bringing it closer to the recommendation than a preliminary decision had been. Reasons for these inconsistencies are considered in terms of the different methods used.     

A comparison of Chinese judges' and US judges' knowledge and beliefs about eyewitness testimony

Abstract

We surveyed 170 Chinese judges about their knowledge and beliefs about eyewitness testimony, and compared their answers to a prior survey of 160 US judges. Although the Chinese judges were less knowledgeable than the US judges, both groups had limited knowledge of eyewitness testimony, including for such important issues as whether lay people can distinguish between accurate and inaccurate eyewitnesses. Unlike the US judges, greater knowledge of eyewitness factors for the Chinese judges was not related to beliefs that may be necessary to reduce eyewitness error. Compared to the US judges, the Chinese judges were much less likely to believe that they needed additional eyewitness training and that they knew more about eyewitness testimony than lay persons. We also discuss the impact of culture, legal systems, investigative procedures, and judges' function on the Chinese judges' responses, and the legal reforms that China may need to implement to reduce eyewitness error.     

Family Law and Social Change: Judicial Views of Joint Custody, 1998–2011

Rapid changes in family life over the last forty years have led to substantial alterations in family law policy; specifically, most states now endorse joint custody arrangements for divorcing families. However, we know little about how lower court judges have embraced or resisted this change. We conducted in‐depth interviews with judges in twenty‐five Indiana jurisdictions in 1998 and 2011. Our findings suggest that judges' views of joint custody dramatically changed. Judges in Wave II indicated a strong preference for joint custody—a theme that was relatively absent in Wave I. The observed change in judicial preferences did not seem to be related to judicial replacement, gender, age, or political party affiliation. Although our conclusions are exploratory, we speculate that shifts in judicial views may be related to changing public mores of parenthood and, relatedly, Indiana's adoption of Parenting Time Guidelines in 2001.     

The Courts in a Fragmented Criminal Justice System

The U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson in 1967 outlined a central role for courts in the criminal justice system. That role, however, has been somewhat diminished by the dominance of plea bargaining and the legislative enactment of mandatory minimum sentences that limit judges’ discretion. At the same time, judges have become more involved in specialized courts dealing in cases involving drugs and mental illness. A major topic of concern is the lower courts, which in many areas have changed little since the 1960s Commission. In those places, the traditional adversary process is not operating well, with many defendants pleading guilty unnecessarily in a system that may be designed primarily to collect fees. In violent crime cases, the imposition of capital punishment remains a controversial issue for states that is not likely to be resolved by a new national commission. The central court functions of sentencing and overseeing plea bargains are discussed elsewhere in this volume.     

Sentencing Recommendations by Probation Officers and Judges: An Examination of Adult Offenders Across Gender

Connecting the courtroom workgroup model with attributions and stereotyping based on the focal concerns perspective and gender sentencing literature, the present study investigates the extent to which probation officer recommendations influence judicial sentencing, and whether the gender of the offender further conditions this relationship. Results from logistic and ordinary least squares regression indicate that there is concordance between probation officer recommendations and sentencing by judges. Offender gender has both direct and indirect effects on judicial sentencing through its relationship with probation officer recommendations, and Black males tend to receive lengthier sentences than other race/gender counterparts. These findings provide evidence that probation officer recommendations are an important part of the sentencing process and offer additional insight on how extralegal factors such as gender and race impact criminal justice decision making.     

Contradictions in Judicial Support for Capital Punishment in India and Bangladesh: Utilitarian Rationales

India and Bangladesh share a common history, and each has developed somewhat similarly since partition. However, while both countries now have relatively low murder rates, India has seen a decline in the rate of executions, while Bangladesh continues to impose death sentences and carry out executions at a higher rate. There have been challenges to the death penalty in India, restricting its use to exceptional cases. The same has not occurred in Bangladesh. Yet in both countries, systemic flaws in the criminal process are evident. This article draws on two original empirical research projects that explored judges’ opinions on the retention and administration of capital punishment in India and Bangladesh. The data expose justice systems marred by corruption, incompetence, abuses of due process, and arbitrary and inconsistent treatment of defendants from arrest through to conviction and sentencing. It shows that those with the power to sentence to death have little faith in the integrity of the criminal process. Yet, a startling paradox emerges from these studies; despite personal knowledge of its flaws, judges have trust in the death penalty to deter crime and to realise other sentencing aims and feel retention benefits society. This is explained by reference to utilitarian values. Not only did our judges express strongly utilitarian justifications for sentencing people to death, in terms of their erroneous belief in its deterrent effect, but some also articulated utilitarian justifications for misconduct in pre-trial processes, suggesting that it was necessary to break the rules to secure convictions when the system was dysfunctional and ineffective.

     

Attitudes toward sentencing guidelines and simulated sentencing among Missouri circuit court judges

This study examines attitudes toward sentencing guidelines and simulated sentencing practices among Missouri circuit court judges. In addition, the study investigates the efficacy of sentencing workshops by comparing judges who attended or did not attend workshops. All Missouri circuit court judges were mailed surveys and 97 judges responded. Results indicated that judges generally felt positive toward Missouri’s voluntary sentencing guidelines, but often failed to refer to the guidelines when sentencing sample cases. Attendance at a sentencing workshop was not associated with attitudes about Missouri sentencing guidelines or sentencing in simulated cases. Sentencing in simulated cases varied by nature of the crime and circuit type. Judges from metropolitan areas tended to sentence more leniently than judges from rural areas. In their written comments, many judges expressed fear about the possibility of mandatory guidelines. Results suggest that there is ambivalence among Missouri judges over the acceptance and use of sentencing guidelines.     

Paradoxes of proof and punishment: Psychological pitfalls in judicial decision making

Purpose . This study focuses on two psychological mechanisms that may inadvertently affect judges' decisions on proof of guilt and on punishment. It involves mechanisms that are clearly in conflict with formal judicial doctrine. One hypothesis, the conviction paradox, asserts that, faced with very serious offences, a judge's standard of proof will be lower than for less serious, but otherwise comparable, offences. A second hypothesis, compensatory punishment, asserts that in cases with relatively weak evidence, judges who nevertheless render a guilty verdict will be inclined to compensate their initial doubt on the matter of guilt by meting out a less severe sentence. Method . The hypotheses are evaluated in an experiment with Dutch judges and justices who serve in criminal courts. This was done using fictitious but highly realistic dossiers of criminal cases. Results . Neither of the two hypotheses was supported in the present study. Conclusions . Findings are discussed in relation to their implications for theory development and future research in the area of legal decision making.     

Criminal Punishment in Islamic Societies: Empirical Study of Attitudes to Criminal Sentencing in Iran

Public opinion on criminal sentencing and aims of punishment has been surveyed mostly in Western countries. In non-Western countries, especially Islamic societies, little has been published, at least in Western journals, on these issues. In fact, no published study examining public views toward criminal sentences and the aims of punishments in Islamic societies may be located in any major database of Western literature. As a result many questions like the relationship between perceived purpose of criminal punishment and its severity and the interactions between the belief in Islam and its Shari’a (Islamic culture) and punitive attitude to criminality have remained unasked. Therefore, the meaning and motive behind the death penalty and other severe forms of punishment in Islamic countries remains unknown to scholars, whether within or outside these countries. This paper introduces, first, Shari’a sentencing laws and practices in some Islamic societies and then, by drawing on a survey administered in Iran in 2008, tries to show and explain the variations in attitudes to Shari’a criminal laws and different forms of punishment, mostly based on Shari’a, across different genders and professions (judges, lawyers, students, Tulab and police).     

JUDGES' UNEQUAL CONTRIBUTIONS TO EXTRALEGAL DISPARITIES IN IMPRISONMENT*

How do judges in the same court system contribute differentially to extralegal disparities in sentencing? Analyses of felony sentencing in an urban Ohio trial court uncovered two distinct but equal-sized groups of judges that differed in the magnitude of extralegal correlates to imprisonment. Within the group of judges reflecting substantive extralegal correlates to prison sentences, demographic correlates (based on defendants' race, sex, age, and the interaction between them) were more pervasive across judges relative to social demographic correlates (based on education, residence length, and means of financial support). The directions of significant relationships involving a defendant's race, age, and means of support also were inconsistent across judges. These interjudge differences suggest that analyses of cases pooled across judges at either the jurisdiction or the state level might over- or understate the relevance of particular attribution theories of sentencing disparities.     

How Law Rules: Torture,Terror, and the Normative Judgments of Iraqi Judges

We present a factorial survey experiment conducted with Iraqi judges during the early military occupation of Iraq. Because U.S. soldiers are immune from prosecution in Iraqi courts, there is no opportunity for these judges to express their views regarding highly publicized torture cases. As legally informed representatives of an occupied nation, however, Iraqi judges arguably have a strong claim to a normative voice on this sensitive subject. We are able to give voice to these judges in this study by using a quasi‐experimental method. This method diminishes social desirability bias in judges' responses and allows us to consider a broad range and combination of factors influencing their normative judgments. We examine why and how the U.S. effort to introduce democracy with an indeterminate rule of law produced unintended and inconsistent results in the normative judgments of Iraqi judges. A critical legal perspective anticipates the influences of indeterminacy, power, and fear in our research. More specifically, we anticipated lenient treatment for guards convicted of torture, especially in trouble cases of Coalition soldiers torturing al Qaeda prisoners. However, the results—which include cross‐level, judge‐case interaction effects—were more varied than theoretically expected. The Iraqi judges responded in disparate and polarized ways. Some judges imposed more severe sentences on Coalition guards convicted of torturing al Qaeda suspects, while others imposed more lenient sentences on the same combination of guards and suspects. The cross‐level interactions indicate that the judges who severely sentenced Coalition guards likely feared the contribution of torture tactics to increasing violence in Iraq. The judges who were less fearful of violence were more lenient and accommodating of torture by Coalition forces. The implication is that the less fearful judges were freed by an indeterminate law to advance Coalition goals through lenient punishment of torture. Our analysis suggests that the introduction of democracy and the rule of law in Iraq is a negative case in the international diffusion of American institutions. The results indicate the need for further development of a nuanced critical legal perspective.