想象竞合犯处断原则的困境与重构

目前关于想象竞合犯的三大处断原则均存在不足。对此,必须以全面评价原则与禁止重复评价原则为指导,以行为无价值、结果无价值、主观罪过三要素为核心,构建新的想象竞合犯处断规则,即想象竞合犯的处刑应当是数罪中最重之宣告刑加上余罪之宣告刑的2/3。该处断规则必须在《刑法》第69条之下运行,即遵守限制加重原则,且如果数罪中有死刑或无期徒刑的,采取吸收原则,执行死刑或无期徒刑;如果数罪中有判处有期徒刑和拘役的,同样采吸收原则,执行有期徒刑;数罪中有判处有期徒刑和管制,或者拘役和管制的,采逐次执行原则,有期徒刑、拘役执行完毕后,管制仍须执行。     

Influences on Detention Decisions in the Juvenile Justice System

This paper examines the pretrial detention of juveniles in County X located in a northeastern state. The sample (N=642) included Black, White, and Hispanic males and females adjudicated delinquent in the summer of 2000. The following independent variables were analyzed with respect to the dependent variable of pretrial detention: age, sex, address, race, current offense (misdemeanors, violent misdemeanors, felonies, violent felonies, and probation violations), prior offense (misdemeanors, violent misdemeanors, felonies, and violent felonies), and previous dispositions (community or placement). Several variables were found to be significant in increasing the odds of pretrial detention: probation violations, prior misdemeanors, prior residential placements, prior community interventions, age, sex, urban address, felonies, prior violent misdemeanors, and prior violent felonies. It was expected that minority youths would be more likely to be detained, but race was only significant in the absence of the variable of address. Urban youths were more likely to be detained resulting in an over‐representation of minorities in detention, since most of the minority population resides in the urban area. Also included is supplemental material based on interviews with defense lawyers, judges, masters, and juvenile probation officers.     

Ten Ways to Reduce Detention Population

“Juvenile detention is regularly overlooked, maligned, and misunderstood. Its embattled condition is best described as severely abused and neglected. It is underfunded, understaffed, crowded and largely ignored.”¹ “Detention caseloads increased 38 percent between 1987 and 1996. The increase in the number of delinquency cases handled by the courts has driven the growth in the number of juveniles in the detention system. In 1987, 1.2 million delinquency cases were disposed of in juvenile courts. By 1996, this number had risen 49 percent, to almost 1.8 million. This increase in the volume of juveniles in the justice system resulted in a 38 percent increase in the number of delinquency cases that involved the use of detention. The number of juvenile delinquency cases detained in 1996 was 89,000 more than in 1987. This has resulted in increased demand for juvenile detention bed space across the country.”² “Changes in statutes allowing more detainable offenses have significantly increased the number of youths admitted to regional detention centers.”³ “Although minority youth constituted about 32 percent of the youth population in the country in 1995, they represented 68 percent of the juvenile population in secure detention…⁴     

Youth In Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy

Transfer (or waiver) of juveniles to criminal court is one of the most extreme responses to serious youth crime. Although many states have recently revised their transfer statutes, and the number of juveniles prosecuted as adults increases each year, little research has been conducted to assess the correctional experiences of delinquent youth convicted in criminal court and sentenced to adult prison. Evaluations of such experiences are important to policymakers and juvenile justice officials who are considering juvenile transfers as a strategy for securing longer and harsher confinement for offenders. Based on interviews with 59 chronic juvenile offenders placed in state training schools, and 81 comparable youths sentenced to adult correctional facilities, this article presents a comparison of offenders' perceptions of their correctional experiences. Juveniles incarcerated in training schools give more positive evaluations of treatment and training programs, general services, and institutional personnel than do those youths in prison. Juveniles housed in institutions which emphasize security over treatment — i.e., prisons — are more often victimized during their confinement than youths in the treatment-oriented training schools. Once placed in prisons, adolescent inmates are more likely to be victims of prison violence and crime from both inmates and staff. These research results suggest some paradoxical effects of the treatment-custody distinction implicit in judicial waiver practices. The differential socialization into crime and violence for youths in adult prisons may increase the risks of having these types of behavior repeated by transferred youths once released.     

Is the Process the Only Punishment?: Racial–Ethnic Disparities in Lower-Level Courts

Although misdemeanors make up the bulk of criminal cases in the United States, the majority of research on court decision-making examines felony sentencing. In contrast to felony courts, lower-level courts are characterized by higher case volumes and increased reliance on informal sanctions, which may contribute to greater racial–ethnic disparities. To assess this possibility, we examine pretrial detention and case processing outcomes for misdemeanants in Miami-Dade County, Florida. Utilizing temporal (detention time) and monetary (bond amount) measures of pretrial detention, we assess whether and to what extent there are racial–ethnic disparities in formal and informal sanctions facing misdemeanants. Results indicate that black defendants, especially black Latinx defendants, face greater informal sanctions (longer detention and higher bond amounts), are more likely to be convicted, and experience more severe formal sanctions than do white non-Latinx defendants. These findings complicate Feeley's (1979) argument about lower-level cases, revealing that black defendants are punished by both the court process and formal sanctions. In this way, “the process is the punishment” for lower-level white and nonwhite defendants, while the punishment is also the punishment for black defendants.     

THE EFFECT OF IMPRISONMENT ON RECIDIVISM RATES OF FELONY OFFENDERS: A FOCUS ON DRUG OFFENDERS*

The purpose of this study is to evaluate the deterrent effect of imprisonment. Using data on offenders convicted of felonies in 1993 in Jackson County (Kansas City), Missouri, we compare recidivism rates for offenders sentenced to prison with those for offenders placed on probation. We find no evidence that imprisonment reduces the likelihood of recidivism. Instead, we find compelling evidence that offenders who are sentenced to prison have higher rates of recidivism and recidivate more quickly than do offenders placed on probation. We also find persuasive evidence that imprisonment has a more pronounced criminogenic effect on drug offenders than on other types of offenders.     

Juvenile Competency and Pretrial Due Process: A Call for Greater Protections in Massachusetts for Juveniles Residing in Procedural Purgatory

While juvenile courts continue to balance and reevaluate the dual goals of community safety and rehabilitation of youth, juveniles who are not competent to stand trial have been left without sufficient procedural protections. This paper examines Massachusetts’ approach to juvenile competency, due process, and pretrial procedure, within a national context. The inadequacies of the Massachusetts juvenile competency laws are not unique. Currently there are nineteen states that either entirely lack juvenile‐specific competency legislation or merely incorporate inapposite adult criminal statutes and standards into the juvenile context—making it difficult or impossible for those juvenile courts to dismiss or divert a delinquency petition following an incompetency finding. Massachusetts and states similarly situated should adopt explicit statutory language to delineate the basis for a juvenile incompetency finding and the grounds for dismissing delinquency complaints pretrial after an incompetency finding has been made. This paper proposes that Massachusetts adopt a timeline for effecting such dismissals based in part on the amount of time a juvenile could face if committed to the juvenile correctional authority following an adjudication of delinquency. The paper also recommends best practices of states that are pioneering juvenile legislative reforms like dismissal timelines and incompetency presumptions. Finally, we suggest a more stringent regulatory framework be put in place governing the pretrial detention of youths who have been found not competent to stand trial—a framework that recognizes and preserves the juvenile's substantive rights to education, mental health and rehabilitative services. Without legislation, juveniles found not competent to stand trial remain subject to the prospect of indefinite locked detention, often without access to the necessary services that contribute to future success as well as attainment of competency. This lack of due process runs counter to the foundational goals of the juvenile justice system.     

Cumulative impact: Why prison sentences have increased*

Why has the probability of going to prison after a felony conviction increased since the early 1980s? Social scientists often try to answer this question through macro‐level research that is aimed at examining correlations between prison admissions and crime rates or sociopolitical characteristics of states. That type of macro‐level inquiry, however, does not allow for a close examination of how characteristics of offenders changed over time, and whether such changes are consequential for understanding trends in the use of imprisonment. In the current study, I take a different approach—one in which case‐level data are observed over a lengthy time span—to investigate why the likelihood of going to prison for a given crime persistently increased for several decades. The results of analyses of more than 350,000 felony cases sentenced in Minnesota during a 33‐year period show that the probability of a defendant receiving a prison sentence increased from 1981 to 2013, as would be expected. The primary reason for the rising probability of imprisonment was the significant increase in the average offender's criminal record, which more than doubled during the observation period.     

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

THE CONCEPTUALIZATION OF DISCRIMINATION IN THE JUVENILE JUSTICE PROCESS: THE IMPACT OF ADMINISTRATIVE FACTORS AND SCREENING DECISIONS ON JUVENILE COURT DISPOSITIONS

Research on race, sex, and social class discrimination in the juvenile justice process has yielded mixed results. These conflicting findings have been attributed to the use of diverse research strategies and various methodological shortcomings. There are, however, two potentially important issues that have not been previously addressed: the need to examine the juvenile justice system as a process, rather than as a series of separate and unrelated decision points, and the failure to control for the impact of administrative factors such as pretrial detention. The purpose of the research reported here is to examine the impact of race, sex, and social class on juvenile court dispositions while controlling for pretrial detention and appropriate legal factors. The analytical strategy employed permits an examination of the impact of these factors over three stages of the juvenile justice process: referral, adjudication, and disposition.
Findings indicate that while legal factors and pretrial detention decline in importance as predictors of disposition as one moves from an examination of all referred to adjudicated youth, race and social class become more important. These results are discussed in terms of their methodological significance and their implications for the conceptualization of discrimination in the juvenile justice process.     

Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention,conviction, and sentencing*

A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors. After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami-Dade County, we estimate nonlinear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention. Results suggest that inequality is greatest between White non-Latinos and Black Latinos, followed by White non-Latinos and Black non-Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7–13 points difference in conviction, 5–6 points in prison, and 4–10 points difference in jail. We find few differences between White non-Latinos and White Latinos. Between half and three-quarters of the inequality in pretrial detention, conviction, and prison sentences between White non-Latino and Black people is explained through legal case factors. Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.     

Youth Crime in Canada: Observations for Cross-Cultural Analysis

Despite its proximity to the United States, Canada provides a unique context within which youth crime can be examined and utilized for comparative analyses. Canada's demographics, cultural mosaic, and the legislative and political bases of criminal justice are quite distinct from those of the United States. While Canadian youth generally experience lower rates of crime than their U.S. counterparts, there are areas where such rates are comparable and require close examination. Among the emerging concerns in youth crime are crime in urban areas, ethnic youth gangs, and the high rates of involvement of aboriginal youth in crime in many areas of the country. The notions of vulnerable youths and viable communities are offered as two useful concepts for the study of youth crime on a national and cross-national basis. High on the research agenda are studies of youth crime in the urban/rural/remote areas of the country, the impact of immigration policy on the emergence of specific types of youth crime, and longitudinal studies of male and female youth crime.     

Low-Level,but High Speed?: Assessing Pretrial Detention Effects on the Timing and Content of Misdemeanor versus Felony Guilty Pleas

Abstract

While numerous studies have examined pretrial detention and felony case outcomes, little empirical attention has been devoted to misdemeanor pretrial detention. We theorize that misdemeanants detained for a longer proportion of time will plead guilty quicker because the costs of fighting their charges in jail often outweigh the sanctions they face. Utilizing data on 165,630 felony and misdemeanor cases from Miami-Dade County, Florida, during a 4-year period (2012–2015) we assess whether the effects of pretrial detention length on the timing and content of guilty pleas differ across lower-level and upper-level courts. Survival analyses and multinomial logistic regressions indicate that misdemeanor cases overall and those involving lengthier pretrial detention are resolved faster, with most resulting in non-carceral sanctions such as credit for time served (CTS). Given that misdemeanors make-up the bulk of U.S. criminal cases, these findings reveal important insights about how pretrial detention impacts case-processing dynamics in lower courts.     

中国应当构建什么样的刑事法律援助制度

在辩护率尤其委托辩护率持续低迷的情境下,逐步扩大刑事法律援助的适用范围以提高辩护率已成为维护被告人权利的重要进路。不久前公布的《关于修改〈中华人民共和国刑事诉讼法〉的决定》虽对此作出努力,将应负刑事责任的精神病人犯罪案件与可能判处无期徒刑的案件纳入法律援助范围,但基于实证调研的分析表明,这一进步的实践作用显然相当有限。综合考量诸方面因素,未来中国应逐步增加财政支持,建构起针对可能判处十年以上有期徒刑的重罪案件或普通程序审理的刑事案件法律援助制度,长远看甚至可考虑将其普适化。     

Recidivism Among Young Males Sentenced to Prison and Youth Custody

In 1999, Sweden introduced a new Act focused on young persons aged 15–17 who commit serious offences. The object of the Act was to replace prison sentences with a new sanction in the form of youth custody, which would involve a placement in a special approved home. This study constitutes a follow-up comparison of criminal recidivism among young males sentenced to prison prior to the introduction of the Youth Custody Act (1991–1998) and young males sentenced to youth custody following the introduction of the Act (1999–2003). The study shows that the sanction has not only been used as a replacement for prison sentences, but has also led to an expansion in custodial sentencing in the form of ‘net-widening’. There has also been a substantial increase in the length of custodial sentences awarded in connection with the new sanction. A comparison with the youth sanction in Denmark raises questions about the consequences of having expanded the group of youths sentenced to a custodial sanction in Sweden, and of the increased length of the custodial sentences to which this group is subjected.     

Pretrial Detention in India: an Examination of the Causes and Possible Solutions

The average rate of pretrial detention in India is 20 per 100,000 of the general population, which is less than half the global average. However, as of 2013, the number of pretrial detainees as a proportion of all prisoners is 67.6 %—over twice the global average. This article seeks to understand the causes of such a high proportion of pretrial detention. Answering this question will help evaluate the present governmental response to the problem of pretrial detention. The article begins by examining the laws and practice of pretrial detention in India and then tries to explain the disjuncture between the two by analysing, first, the role of various functionaries, namely the police, prosecutors, judiciary and prison officials; second, the profile of the pretrial detainees and their (in)ability to post bail and, finally, the (in)effectiveness of the existing legal aid system. It posits that while partly a result of relatively low overall convict populations, the high incidence of corruption; shortage of human, physical and monetary resources and governance and lack of coordination contribute to the high number of pretrial detainees in the prison population in India. It then concludes by describing existing solutions and referencing the practice in Pakistan and Bangladesh, which face similar problems and have similar laws and institutional structures.     

A cross‐cultural comparison of the self‐concepts of imprisoned young offenders by country,race, and parental status

The Tennessee Self‐Concept Scale (TSCS) was administered to 193 imprisoned male youthful offenders in a southern U.S. state and to 161 male young offenders in one of Her Majesty's young offender institutions in England. The purpose of the study was to determine if the self‐concept scores of the subjects differed significantly according to the subject's ethnicity (Country), whether the youth resided with one or both parents or separate from either parent (Parental Status Residence) at the time of imprisonment, and Race. Analyses reveal the Total Self Concept scores of the U.S. and English offenders, as well as the sub‐scale scores, which together make up the Total Self Concept score, are significantly lower than for normal subjects. The U.S. offenders’ scores were more abnormal than the English offenders, often falling below the lowest normal range score, in some instances so low as to suggest serious psychopathological conditions. Discriminant function (DF) analysis was used to analyze the effects of the 12 self‐concept measures in distinguishing subjects by Country, Race, and Parental Status. Analyses correctly classified group membership more than two thirds of the time for each of the three variables and produced moderate to strong correlation coefficient values for various sub‐scales on each of the three variables. Black subjects in both cultures were found to score significantly lower than their White counterparts, a finding that contradicts numerous earlier studies. Findings also question the labeling theory proposition that the stigma of delinquency and subsequent imprisonment with other delinquents exacerbates one's negative regard of self. And perhaps more important, the findings suggest that cultural influences in both countries, rather than the effects of the stigma of the delinquent label and imprisonment, operate to cause low‐self‐concept long before one becomes involved in the justice system. Findings also reveal that delinquent youths from intact families have significantly higher self‐concepts than those from fragmented families.     

Performance-based evaluation,state compensation and judicial ecology: dynamics of China’s detention review practice

Through participatory observation and in-depth interviews with thirty-four practitioners, this article pierces the veil of the dynamics of China’s pretrial detention system by looking into various socio-legal factors which may affect law enforcement in China. When the prosecutors make their decisions on detention in practice, a variety of factors such as state compensation, performance-based evaluation as well as judicial ecology such as public opinion, power struggle, and judicial coordination all play a role. The dynamics of China’s detention system, through governing the prosecutors’ daily operations and the procuratorate’s routine policy-making, often distort the pretrial detention system that is mainly regulated by the Criminal Procedure Law and in practice, result in a high rate of custody. The dynamics also suggest a non-autonomous criminal justice system in China, meaning that extra-legal factors usually influence, complicate, and sometimes even re-direct China’s development of the rule of law.     

Impact of the Young Offenders Act on Dispositions in the Juvenile Justice System of Canada

Following implementation of the Young Offenders Act (YOA) in April 1984, it was believed that a shift had occurred from an emphasis on rehabilitation and indeterminate sentences under the Juvenile Delinquents Act (JDA) to an emphasis on punishment and determinate sentences under the new legislation, and a subsequent increase in frequency and length of custodial dispositions. Research studies suggest that, while the number of youths charged and the number sentenced to probation has remained the same, committals to custody and average length of detention have increased. Furthermore, victim reconciliation and community service orders are being used more often as dispositions under the YOA, consistent with the principle of accountability of young offenders.

The present study attempts to determine the impact of the YOA on judicial dispositions for 13 to 15 year old young offenders at the Provincial Court (Family Division), Frontenac County, by attempting to control for the nature of the cases and the type of individual brought before the courts. The hypothesis examined is that the YOA has not caused a change in youth court dispositions.

Differences were, in fact, found between dispositions used and it was shown by matching youths under each Act on age, sex, offence, and previous history, that similar youths do not necessarily receive the same dispositions; the probability of receiving a more severe form of disposition is greater for youths under the YOA than for youths with similar background characteristics and current offence under the JDA. Individuals who are given a particular disposition under the JDA and the YOA were also found to differ in terms of background characteristics. A number of reasons for the discovery of a change in dispositions are discussed.     

'Condemn a Little More, Understand a Little Less': The Political Context and Rights' Implications of the Domestic and European Rulings in the Venables-Thompson Case

In 1993 Jon Venables and Robert Thompson were found guilty of the abduction and murder of two-year-old James Bulger. Aged ten at the time of the offence, the children were tried in an adult court before a judge and jury amidst a blaze of publicity. They were named by the trial judge and sentenced to detention at Her Majesty's Pleasure [HMp]. The Home Secretary set a minimum tariff of fifteen years imprisonment. In December 1999 the European Court of Human Rights held that, in the conduct of the trial and the fixing of the tariff, the United Kingdom government was responsible for violating the European Convention on Human Rights. This article maps how the case became a watershed in youth justice procedure and practice influencing Labour's proposals for reform and the 1998 Crime and Disorder Act. Examining the progression of appeals through the domestic and European courts, it explores the dichotomous philosophies separating the United Kingdom and European approaches to the age of criminal responsibility, the prosecution and punishment of children, and the influence of political policy on judicial decisions. Finally, the 'backlash' against 'threatening children', the affirmation of adult power and knowledge, and the implications of the European judgments in the context of a rights-based agenda are analysed.