美国起诉裁量权研究

检察官的起诉裁量权是美国刑事司法系统中的重要制度,其在起诉便宜主义指导之下有一套自洽均衡的运行体系。着重分析美国起诉裁量权运用过程中应予考虑的各种因素,以及其运用构造,政策争论,宪法控制几个重要问题,希望对深入了解和借鉴美国的起诉裁量权有所裨益。     

Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts

The role of the prosecutor in criminal punishments remains a fervent topic of criminal justice discourse, yet it has received limited empirical attention, particularly for U.S. Attorneys in federal district courts. The present study examines charging and sentencing outcomes in federal courts by combining charging data from the Administrative Office of the U.S. Courts with sentencing data from the U.S. Sentencing Commission. The merger of these data sources overcomes limitations of each and provides for an investigation of the causes and consequences of federal prosecutorial charging decisions. Our investigation focuses on the subtle but important influences that extralegal offender characteristics exert in this process. Results indicate that some extralegal characteristics are intricately tied to the likelihood of charge reductions. Moreover, these effects sometimes interact to produce compound disadvantages for some groups of offenders. Our analyses are guided by contemporary theoretical perspectives on courtroom decision‐making.     

起诉裁量权正当性研究

在和谐社会背景下,起诉裁量权能否获得应有的法律效果和社会效果,取决于其正当性.正当性即可接受性,包含合法与合理两项内容,具有客观和主观双重属性.然而,在长期的司法实践中,由于实质、形式、实践、经验等方面的原因,起诉裁量权具有"先天"的失当性,基本表现为合法性与合理性的缺失.基于此,分别从检察官博弈和程序彰显与控制两个视角,从正当实体和正当程序两个层次论证如何实现起诉裁量权正当化.在和谐社会背景下,司法之解应具有二元属性:客观合法和主观合理.为实现这两个目标,在正当实体层面上可运用"法意"阐释、"法益"衡平等方法.正当程序层面上应确保实现起诉裁量中的检察官公正、诉讼参与人广泛性参与、裁决充分说理以及形式正义.     

Self-Representation versus Assignment of Defence Counsel before International Criminal Tribunals

After examining the drafting history of Article 14 of the UNCovenant on Civil and Political Rights, which lays down a defendant'sright ‘to defend himself in person or through legal assistanceof his own choosing’ — the relevant national andinternational case law and scholarly commentary — theauthor argues that the underlying purpose of the right at issueis to ensure a fair trial. This objective can best be met incases of former leaders accused of international crimes by assigningthe defendant a highly qualified attorney who is vigilantlycommitted to representing his client's interests. In his view,there are two main reasons why a court in international crimestrial should be able to require the defendant to work throughcounsel: (1) the likelihood that a defendant will act in a disruptivemanner; and (2) the unique need in a complex international crimescase for an orderly trial.     

检察官起诉裁量权的外部控制及其反思——以国际刑事诉讼为视角

在国际刑事诉讼中,检察官起诉裁量权的外部控制不可或缺,而单纯的外部控制却凸显范围有限、效果不佳、成本高昂等局限与不足。与单纯的外部控制相比,内部控制具有主动性、自律性的特点,且这种内部监督和控制的限度还与国际刑事法治的境界相契合。在当前检察官的起诉裁量权广泛存在且业已渗入非缔约国司法领域的情况下,只有将基于内外因辩证关系原理指导下的双重控制有机结合起来,才能防范裁量权滥用,促进实现裁量正义,保证国际刑事诉讼中检察官裁量权的公正行使。     

Advising Defendants about Guilty Pleas before International Courts

The aim of the article is to convey to the reader the varietyof considerations that Defence Counsel before the InternationalTribunals must take into account when advising accused personsabout their pleas. Although there are no formally adopted sentencingguidelines for guilty pleas, certain practices and patternshave emerged in the jurisprudence. The article thus examinesthe host of mitigating and aggravating factors which the judgeshave identified in the sentencing judgments following guiltypleas. The plea-bargaining process is also discussed, in particularthe deviations between the sentences recommended in the agreementsbetween the Prosecution and Defence, and those handed down bythe Trial Chambers—another factor about which accusedpersons must be advised in deciding upon their pleas. The articleconcludes by highlighting the challenges faced by Defence Counselin applying the multiplicity of sentencing features to the factsof each case.     

Social Science Experts and Amicus Curiae Briefs in International Courts and Tribunals: The WTO Biotech Case

Netherlands International Law Review -     

Restructuring the Exercise of Prosecutorial Discretion in England

Determining whether a person who appears to have committed anoffence should then be prosecuted for it requires a number ofassessments and weighing of interests. Yet, to read the latestCode for Crown Prosecutors, one would think that the exerciseof prosecutorial discretion is a relatively unstructured process.This is because the Code does not require prosecutors to identifyan aim in seeking the punishment of the accused, and becauseit does not distinguish between the harms caused to the defendantby punishment and the distinct harms which are caused to himby prosecution. I shall argue that the aim of the prosecutor(assuming that guilt will be proven) should be to decide whetherthe aims of punishment of the accused would be justified bythe likely costs of the proceedings, but that this aim may beconstrained by considering the harms which may be caused tothe defendant by prosecution. If this structure were to be accepted,then it would both be easier to draft a Code for Crown Prosecutorswhich has useful guiding value and to identify to whom the prosecutorshould be accountable for his decisions.     

论诉讼与仲裁关系中的既判力问题

在诉讼与仲裁的关系中,涉及既判力的主要有两个问题:仲裁庭是否受到法院判决的约束,或者法院是否受到仲裁裁决的约束。在国内仲裁中,判决与裁决的相互约束已为许多国家的法律及司法实践所肯定。在国际仲裁中,如何协调诉讼与仲裁的关系,实践及理论认识中还存在分歧。为避免裁决与判决之间的冲突,法院可依《纽约公约》承认仲裁裁决来认可外国仲裁裁决的既判力;仲裁庭也应尽量尊重他国法院判决的既判力,毕竟法院对仲裁庭的管辖权及仲裁裁决拥有司法最终决定权。比较和研究各国的立法例、判例,剖析我国法律中的相关规定,有助于厘清诉讼与仲裁的关系。     

International Criminal Tribunals and the Media

The media are widely different in outlook and level of interestwhen the subject is international criminal justice. Newspapersand television stations have widely divergent needs. Similarly,there are marked discrepancies between media in countries directlyaffected by the atrocities that are probed during internationaltrials, and media elsewhere. In reporting war crimes trialsfor public opinion at large (in this case in the United Statesand in Europe), one must take into account the difficulty ofcapturing the interest of readers. The crimes in Bosnia or inRwanda were in the headlines more than a decade ago. Today attentionhas moved to other countries. Ideally, the trials should bepresented through captivating narratives, but the complexityand length of criminal proceedings often make this difficult.Although the arrests of senior officials get much attention,interest in the legal aspects of their case wanes quickly. Moreover,the impression that international criminal justice is selective,and seems to wield double standards as to which cases are prosecuted,and which are not, continues to produce scepticism.     

Prosecutorial Discretion,Drug Case Selection,and Inequality in Federal Court

Abstract

In this article, I explore variations in prosecutors’ discretionary case selection practices by drawing on findings from a comparative field research project of drug prosecutions conducted in four federal districts. Using data from a series of in-depth interviews with legal actors in each district, I develop a typology of the kinds of drug cases brought in my sample districts, explore the logics underpinning their selection, and examine the potential impact of selection practices on racial inequality in drug caseloads. Findings elucidate the local variations in logics and practices that are nonetheless shaped by broader ideologies and structured incentives that encourage certain types of prosecutions. Prosecutorial discretion at the case selection stage also plays an important role in how cases are adjudicated, which is often closely linked to the logic underpinning the choice to file.     

National Courts,International Crimes and the Functional Immunity of State Officials

Netherlands International Law Review - This article examines the extent to which state officials are shielded from foreign jurisdiction by functional immunity when they stand accused of committing...