Restorative Sentencing: Exploring the Views of the Public

Within the past decade, restorative justice has emerged as a truly global phenomenon. Although retributive justice has dominated the penal landscape, more recently, restorative principles at sentencing have attracted increased attention. Restorative sentencing emphasizes the importance of compensation and reconciliation between victims and offenders and pays less attention to establishing proportionality between the seriousness of the offense and the severity of the sentence imposed. Although voluminous (and proliferating), the scholarly literature on restorative justice has to date neglected one critical issue: public opinion with respect to this justice paradigm. Public opinion researchers too, have generally overlooked this topic. The goal of this paper is to determine which elements of the new paradigm generate public approval, and which features are likely to encounter or provoke public opposition, drawing upon related international research published in English over the past 20 years (1982–2002). The review reveals widespread support for restorative sentencing options, such as community service, compensation, and restitution, particularly when applied to young offenders. However, it also seems clear that public support for these alternatives to punitive sentencing options declines as the seriousness of the offence increases, suggesting strong public adherence to the retributive principle of proportionality in sentencing.     

Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation

While there is abundant research on common law jury systems, we know less about lay participation in civil law crime trials, often called ‘mixed courts’ or alternately ‘mixed tribunals'. Here, a professional judge and a number of lay judges deliberate together on the issues of guilt and sentencing. This joint deliberation has naturally led both public opinion and research to focus on power relations such as lay judges’ dependence on the professional judges. Based on an ethnographic study of deliberation processes, the present article offers a different perspective on lay judges’ contribution and argues that their decision making rests on a hybrid construction of knowledge in the continuous interaction between the professional judge and lay participants during deliberation. The analysis of this decision‐making process contributes to our understanding of how ordinary people selected for this civic duty create knowledge about justice.     

公共财政视野下的《预算法》修改

《预算法》是我国最重要的民生法律,其修改引起社会的广泛关注。2011年11月16日,国务院讨论并通过了《中华人民共和国预算法修正案（草案）》,     

Public Attitudes and Sentencing Policies Across the World

Many Western countries have experienced a boom in prisoners rates, characterised as “carceral hyperinflation” or “new punitiveness”. Politicians and opinion makers assume that this reflects the demand of the public for more severe sentencing. This article analyses data on the attitudes of the population towards punishment from over thirty different countries taken from the International Crime Victim Surveys of 2004/2005. First, some key findings on punitivity are presented showing that in many countries the public prefers non-custodial sentences for recidivist buglars. Next, results are presented from a multi-level analysis of the correlates of punitiveness at both the individual and country level. This multi level analysis shows that individual characteristics explain very little variance in country differences in punitiveness. On country level, the level of common crime and the Gini coefficient, a measure for income differences in the country, have significant explanatory power. The often mentioned tougher attitude towards sentencing in the English speaking/common law countries is fully explained by this. Finally, the relation between the publics attitude towards sentencing and a measure of actual sentencing severity showed a weak and inverse relationship at country level.     

Dissecting White-Collar Crime: Offense Type and Punitiveness

It is commonly asserted that the public is indifferent toward white-collar crime and hence is reluctant to “get tough” with more “respectable” criminals. However, such a contention fails to consider that there are many varieties of upperworld criminality and that the punitiveness of the public may differ markedly according to the type of offense involved. Based on a 1981 survey conducted in Galesburg, Illinois, we have attempted to investigate whether the criminal sanctions prescribed by citizens will vary when the broad category of white-collar crime is “dissected” into its component types. The data suggest that (1) there is considerable variation in punitiveness by type of offense; (2) while street crimes are generally given the harshest sentences, violent forms of white-collar illegality are accorded severe sanctions that exceed those meted out for some F.B.I, crimes; and (3) there is little support for the notion that the public responds leniently to upperworld crime.     

An Inside View: Professional Judges' and Lay Judges' Support for Mixed Tribunals

This paper studies the level of specific and general support for mixed tribunals, a form of lay participation in the government. The analyses focus on the opinions provided by 229 Croatian lay judges and eighty professional judges – the insiders in mixed tribunals. The results indicate that the judge's lay or professional role in the criminal justice system and the type of court exhibit stronger influence on the general level of support than any of the variables measuring specific support. Nevertheless, the perceived frequency of lay judges' comments, the most direct measure of members' crucial activity during trials and deliberations among the specific variables included in the models, is significantly related to the respondents' general opinions about mixed tribunals.     

The Court of Public Opinion: Lay Perceptions of Polygraph Testing

We sampled a total of 411 participants and randomly assigned them one of three brief trial vignettes that contained either no-polygraph evidence, evidence of a passed polygraph test, or evidence of a failed polygraph test. Participants rendered guilt judgments and answered a series of questions concerning the trial in particular, and polygraph tests in general. Similar to previous studies on the impact of polygraph evidence on jurors' guilt judgments, this sample of jury-eligible adults indicated that they did not find polygraph test evidence to be persuasive. Moreover, it mattered little to participants whether the results indicated the defendant passed a polygraph test, or that he failed a polygraph test. However, when our findings are compared to those of previous surveys involving experts in the field of psychophysiology, they differ in a number of important respects. The implications for decisions regarding admissibility (e.g., U.S. v. Alexander, 1975 and U.S. v. Scheffer, 1998) are discussed.     

Sentencing Disparity and Sentencing Guidelines: the Case of China

Asian Journal of Criminology - This study investigates sentencing disparity under the sentencing guidelines in China. Drawing upon the firsthand data of 509 criminal cases from a county-level court...     

Lay Juries, Professional Arbitrators, and the Arbitrator Selection Hypothesis

Do civil juries follow the broad dictates of the law? For example,do those plaintiffs who suffer greater damages receive greaterawards? Are juries consistent? Do juries empty deep pockets?In many states automobile accidents are first tried by a professionalarbitrator and then by a jury if one of the litigants is dissatisfiedwith the outcome. How do the decisions made by professionalarbitrators compare to the decisions made by juries? This articleseeks to answer these questions by first developing a modelof arbitrator selection and then undertaking an empirical studyof 380 automobile accident cases that went through both an arbitrationand a jury trial.     

量刑与定罪互动论:为了量刑公正可变换罪名

现行刑法理论中定罪与量刑的关系被扭曲了,刑法理论把准确定罪置于至高无上的地位,司法机关把大量精力耗费于准确判断罪名,定罪决定量刑、量刑不可能影响罪名成为刑法公理。但是,判断罪名意义上的定罪,并非刑法的目的;对被告人和社会最有意义的是量刑,判断罪名只是为公正量刑服务的;因此,如果常规判断的罪名会使量刑失当,就可以为了公正量刑而适度变换罪名。     

从量刑基准到基准刑:量刑方法的革新

量刑基准的内涵存在广义与狭义之分,狭义的量刑基准通常是针对抽象个罪予以确定,并将适用于个案或者作为法官对个案量刑的参照物。量刑指导意见认为脱离具体犯罪事实去寻找量刑基准不符合法官量刑思维,在方法论上也不具有可操作性,主张结合个案具体犯罪事实分步骤确定作为量刑情节发挥调节功能的基准点,该基准点即量刑指导意见中基准刑。基准刑作为区别于狭义量刑基准的概念的一个范畴,其提出有一个过程,并具有自身的规定性。基准刑概念的提出使量刑步骤得以具体化并具有可操作性。从量刑基准到基准刑的转变,反映出我国量刑方法的革新。     

量刑的价值判断与公正量刑的途径

量刑是事实判断与价值判断的有机统一。量刑的事实判断以犯罪的主客观事实为基础,量刑的价值判断体现国家和社会惩罚与预防犯罪的特殊需要。《刑法》第61条规定的是量刑的事实根据与法律根据,在价值判断上有所缺漏。量刑的价值判断与规范判断并不相同。影响量刑的非规范性价值评价因素主要包括:情势变迁、文化背景、价值观念以及犯罪人的家庭、生活状况等。公正量刑的途径在于:坚持事实判断与价值判断相结合;适时调整量刑的依据和标准;赋予法官适度的自由裁量权;建立和完善相关的程序机制。     

量刑建议制度探析——以重庆市A区检察院量刑建议工作为调查分析样本

量刑建议制度在试行过程中逐渐暴露出定罪建议权限设置低于量刑建议权、量刑建议随起诉书移送导致出现因量刑理由变化影响量刑的准确性、量刑建议在庭审中提出的阶段缺乏统一规定等制度设计上的缺陷,以及面临量刑建议与法院判决存在一定偏差、量刑建议是否被采纳受法院内部标准和刑事政策变化的影响大、法院就低采纳量刑建议、量刑建议未完全纳入判决书等制度运行中的弊端。应当建立量刑建议听取辩护人和被害人意见的制度,取消量刑建议讨论程序,实行庭前证据开示,赋予公诉人在法庭上改变或者撤回量刑建议权,将量刑建议采纳情况作为抗诉依据,设置科学合理的量刑建议考核标准。     

Twenty-First Century Punitiveness: Social Sources of Punitive American Views Reconsidered

Objectives

This study considers the social determinants of twenty-first century punitive American views.

Methods

Using General Social Survey data for 2000 and 2014, this research seeks to replicate Unnever and Cullen’s analysis of the determinants of punitive American views in 2000, extend their analysis to consider animus toward the poor as a predictor of punitive views, and consider the social foundations of punitiveness in 2014.

Results

Our analysis replicates Unnever and Cullen’s (Criminology 48: 99–129, 2010) findings for 2000 and identifies previously obscured indirect effects of anti-Black racial stereotypes on punitiveness. In our extension analyses, animus toward the poor was a significant predictor of punitiveness in 2000. For 2014, we find that anti-Black racial resentment, animus toward the poor, and social anxiety significantly predicted both support for the death penalty and the belief that courts are not harsh enough.

Conclusions

The social sources of American punitive views have not shifted fundamentally in the last 15 years. Both racial resentment and animus toward the poor have been and remain powerful predictors of punitive American views in the twenty-first century, controlling for other factors.

     

论量刑情节的适用和基准刑的确定

中段论假定,均质化的、排除任何情节的"裸"的犯罪行为类型,其客观的法益侵害还是主观的人身危险都是中间程度的,但是这一假设不能成立。因此,基准刑应当针对具体罪行分别确定,而不能按照法定刑的中点抽象地、简单地确定。而适用量刑情节时,基准刑应当为起点刑,在从重从轻情节竞合情形,在量化的前提下,可以通过加减方式量刑,但是在适用减轻情节时,必须把握减轻处罚优先原则。     

Sentencing Contempt of Court in International Criminal Justice: An Unforeseen Problem Concerning Sentencing and Penalties

International criminal tribunals, like any criminal court, havebeen faced with offences against the administration of justice,such as contempt of court. The power of the UN ad hoc Tribunalsto punish these offences has raised problematic issues mainlyconcerning respect for the principle of legality (includingfrequent amendments to contempt-provisions, and the substantialincrease of the sentencing frame for contempt within only afew years). This article seeks to clarify some aspects concerningapplicable penalties and sentencing for contempt of court throughthe examination of the case law of the ad hoc Tribunals andthe Special Court for Sierra Leone, discussing its implicationsfor the principle of legality. It is argued that the processfollowed in sentencing contempt is in many aspects not dissimilarto the traditional judicial practice of the Tribunals concerningpurposes of punishment, aggravating and mitigating circumstancesand guilty pleas.     

Simple Rhetoric and Complex Punitiveness: Federal Criminal Justice Responses to White-Collar Criminality

Abstract

Though criminological literature shows that the manifestation of punitiveness in the criminal justice system is complex, it rarely differentiates between responses to different kinds of crimes. This constitutes a significant gap in knowledge, as it is widely believed that white-collar crimes are treated leniently. In light of the “heating up” of political rhetoric, the expansion of federal criminal law, and the increased maximum punishments on conviction, the article aims to explore whether prosecutorial and judicial responses to white-collar crimes have become more punitive, employing rarely used datasets from the Bureau of Justice Statistics (BJS) between 1996 and 2014. It is demonstrated that these responses are more complex and less consistently punitive than the rhetoric and policies advanced by politicians. It endeavors to capture the complexity of punitiveness in practice by measuring numerous variables and multiple points in the criminal justice process, studying punitiveness from multiple angles, using prosecution and sentencing data.     

Reforming the Role of Magistrates: Implications for Summary Justice in England and Wales

The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy.