Dead Man Walking: Law and Ethics After Giorgio Agamben's Auschwitz

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

试论影响死刑适用的几个因素

死刑是一种最严厉的刑罚方法.如果说理论工作者还只是抽象地谈论死刑的严厉性的话,那么法官在具体适用死刑时不仅要直接面对即将被剥夺生命的被告人,而且还要面对由于死刑判决的不可逆转而带来的心理压力.然而从司法实践来看,死刑的裁量仍存在诸多难以令人满意的地方.其突出表现一是在司法实践中死刑的裁量存在过多、过滥的问题;二是死刑的裁量存在案件不平衡、时间不平衡、地区不平衡的问题.造成死刑裁量过多过滥及量刑不平衡的因素是多方面的,笔者拟选择其中三个主要的因素加以分析,并就教于学者同仁.     

Victim-offender race and support for capital punishment: A factorial design approach

Existing research suggests that juries are more likely to condemn murderers to death when offenders are black victims are white. It remains to be seen, however, whether these decisions reflect broader racial prejudices in society that are imported into the jury room. If they do, then insuring equity in capital sentencing may be beyond reach. Accordingly, this study uses factorial design methodology to examine whether members of the general public are more supportive of capital punishment when asked to rate a vignette describing a murder involving a white victim and black offender as opposed to other victim-offender racial combinations. Our analyses suggest that the race of the offender, but not the victim, has a significant influence on support for capital punishment. Thus, procedural safeguards alone may be unable to eliminate racial bias in capital sentencing.     

Systematic review of religious affiliations and beliefs as correlates of public attitudes toward capital punishment

Religious reasons are frequently described as considerations that shape support for or opposition to capital punishment; however, there are many inconsistencies in the literature. This study represents a systematic review of the extant research on religious affiliations and beliefs as correlates of public attitudes toward capital punishment. Searches conducted in five databases identified 33 articles, representing 97,570 respondents. Results revealed that people belonging to Protestant affiliations and with negative images of God were more likely to support capital punishment. People possessing positive images of God and with strong beliefs in compassion were less likely to support capital punishment. The religious correlates commonly assessed in the extant literature, such as fundamentalism, are not significant correlates of attitudes toward capital punishment. Findings also revealed that the predominance of research examined Christian religious affiliations, to the exclusion of other common affiliations, such as Buddhist or Islamic affiliations. Taken together, findings suggest that compared to affiliations, religious beliefs better explain attitudes toward capital punishment. Further research is needed to investigate the ways religious correlates influence death qualified jury selection and capital sentencing decisions. An increased understanding of the nuanced relationship between religion and capital punishment attitudes can better inform capital punishment policy and practice.     

The age of death: Appraising public opinion of juvenile capital punishment

Despite its original purpose to protect and rehabilitate wayward children, the juvenile system has grown more punitive and has embraced the use of harsher punishments, including execution, for juvenile offenders. Relatively little is known, however, about public attitudes toward the use of capital punishment for juveniles. This research explored the determinants of death penalty opinion, identified the minimum age at which respondents were willing to allow a juvenile to be put to death and examined the willingness of respondents to support an alternative sentence of life without the possibility of parole (LWOP). The results suggested that, while one-quarter of the sample was willing to execute juveniles who were fifteen and under at the time of the crime, there was less support for the execution of juveniles than of adults. In addition, of those who supported the use of the death penalty for juveniles, almost one-half would support LWOP as an alternative to the death penalty.     

Not everyone strongly supports the death penalty: Assessing weakly-held attitudes about capital punishment

Polls exploring attitudes toward the death penalty typically impose a simple, dichotomous response structure: respondents are asked whether or not they support or oppose capital punishment. This polling strategy deprives respondents of expressing an indication of the strength of their opinions. When asked whether they support (or oppose) the death penalty “strongly” or “not strongly,” significant proportions of respondents select the latter category. This suggests that many proponents and opponents of the death penalty have weakly-held views regarding the issue. These respondents are of great interest because they are the individuals most likely to change their views. This article analyzes responses to two national surveys in order to explore the variables that differentiate respondents with strongly-held and weakly-held views. A theoretical account is offered to explain why some people have weakly-held views on this critical social issue.     

毛泽东死刑思想研究

毛泽东思想是中国共产党建党和新中国建国的指导思想,对于中国社会当代与未来发展的影响举足轻重.现行宪法将毛泽东思想载入序言,确定了其在国家政治体制与制度中的地位.在今天建设社会主义法治国家的进程中,如何使毛泽东思想的精髓与这一目标相融合并促进之,对于法学工作者来说,是一个应予重视的课题.就刑事法的领域而言,毛泽东同志从政治斗争与政权建设而阐发的一些政策思想,对于我……     

The gender gap in capital punishment attitudes: An analysis of support and opposition

This study examines the gender gap in attitudes toward the death penalty, including attention to global versus specific measures. The study is based on a survey in Tennessee of attitudes toward crime and criminal justice. Specifically, the study examines male and female global attitudes, attitudes toward a life without parole option, reasons that supporters and opponents give for their views, and how specific factors might change the level of support for or opposition to capital punishment. Although majorities of both genders favor capital punishment, important differences exist. Implications are discussed. An earlier version of this study was presented at the 1999 Annual Meeting of the Southern Criminal Justice Association in Chattanooga, Tennessee. Dr. John Paul Wright was instrumental in conducting the Tennessee Crime Survey, the source of the data used in this study.     

Heckler v. Chaney: judicial and administrative regulation of capital punishment by lethal injection

Capital punishment by lethal injection, which was expected to be the most safe and effective of available methods, can produce unusually cruel and inhuman death. In Heckler v. Chaney, inmates sentenced to death by lethal injection, as well as members of both the medical and legal communities, challenged the Food and Drug Administration's (FDA) refusal to regulate certain drugs used for capital punishment by lethal injection. By declining to review the FDA's nonenforcement decision, the Supreme Court also declined an opportunity to reevaluate its standard for determining cruel and unusual punishment, which upholds any method of execution that is no more unusually cruel than existing methods. This Comment examines the propriety of judicial and administrative regulation of capital punishment by lethal injection.     

The deterrent effect of the perceived certainty and severity of punishment: A review of the evidence and issues

This paper critically examines the role of the perceived certainty and severity of punishment in deterring criminal/deviant behavior. A thorough review of the perceptual deterrence literature from 1972–1986 is provided which indicates that cross-sectional correlations between perceptions of sanction threats and self-reported criminal/deviant behavior are moderately negative for diverse offenses, consistent with the deterrence doctrine. It is noted that rather than expressing the deterrent effect, these correlations probably indicate the effect of prior behavior on currently held perceptions—the experiential effect. In addition, since in many instances the reported correlations express simple bivariate relationships, the association may be spurious rather than causal. When researchers employing panel designs have estimated the deterrent relationship with variables in their correct temporal ordering and with more fully specified causal models, the moderate inverse effect for both perceived certainty and severity disappears. Although this would argue strongly for the continued utilization of longitudinal data and fully developed models of deterrence/social control, recent commentaries have raised questions about this line of perceptual deterrence research. These arguments are assessed and an agenda for future deterrence research suggested.     

Party affiliation and support for capital punishment: An assessment of lawmakers from Canada and the United States

This article assesses the attitudes supporting capital punishment among lawmakers from two democratic countries — Canada and the United States. Accordingly, data were collected from three different populations responsible for legislating law either permitting or prohibiting the use of capital punishment in their respective jurisdictions — the Canadian House of Commons and the Michigan and Ohio state legislatures. These data were used to assess two general hypotheses: (1) Conservative parties will report higher levels of support for capital punishment; and, (2) Individual members from liberal political parties will report lower levels of support for capital punishment when compared to members of more conservative parties. The research findings supported both hypotheses.     

Accommodating death penalty legislation: Personal and professional views of assistant district attorneys toward capital punishment

Reinstatement of the death penalty in New York in 1995 forced an entire generation of prosecutors to confront capital punishment for the first time in their professional capacities. A total of 191 assistant district attorneys (ADAs) from 44 of New York’s 62 county prosecutors’ offices responded to a written survey. The results show ADAs hold widely divergent views about capital punishments, although most respondents fail to recognize their colleagues maintain differing viewpoints. The return of the death penalty appears to have both personal and professional implications for New York ADAs, and has precipitated potentially significant changes in their work environments.     

On the need for a philosophical investigation of capital punishment by the U.S. Supreme Court

The Supreme Court needs to clearly articulate the legal-political philosophy underlying its decisions so that consistency can be sought. Decisions involving life-and-death issued, such as capital punishment, should be based on sound, articulated philosophy rather than public opinion polls and the perceived mood of the public. Supreme Court justices, like everyone else, bring their own biases to their decisionmaking, but too often cases appear to be decided on “technical” due process issues rather than philosophic grounds. Of course, the “due process” interpretations used actually reflect inarticulated political philosophy.     

A test of the stability of punishment hypothesis: The Dutch case

This paper tests the hypothesis of the stability of punishment as developed by Blumstein and his associates against Dutch prison data. After summarizing the existing empirical evidence, Dutch prison data are presented pertaining to the average daily population in penal institutions, on the one hand, and the number of admissions in these institutions, on the other hand. In three ways it is tested whether these data do support the hypothesis: regression analysis, Box-Jenkins analysis, and the analysis of a few dynamic models as presented by Berket al. (1981). The paper ends with discussing Blumstein's hypothesis and considers the way research into the extent of the prison population should be continued.     

The stability of punishment: A follow-up of Blumstein's hypothesis

Because of the intrinsic relativity of social tolerance toward crime, the rate of punishment that a given society inflicts on its criminals is expected to remain relatively constant over the long term, in spite of social changes and increasing or decreasing crime rates. This paper reconstructs the penal behavior of Montreal's criminal justice from 1845 to 1913 and finds that the stability hypothesis, all things considered, works quite well and has much heuristic value. Three problems, somewhat bypassed in the existing literature, are dealt with here: the reliability of penal statistical time series, the direct empirical evidence of stabilization processes, and a rather crude way of measuring prison punishment. It is suggested, furthermore, that the stability hypothesis include in its future argument the impact of increasing policing and that it be confined tentatively to modern western societies.