A HEAVY THUMB ON THE SCALE: THE EFFECT OF VICTIM IMPACT EVIDENCE ON CAPITAL DECISION MAKING*

The past several decades have seen the emergence of a movement in the criminal justice system that has called for a greater consideration for the rights of victims. One manifestation of this movement has been the “right” of victims or victims' families to speak to the sentencing body through what are called victim impact statements about the value of the victim and the full harm that the offender has created. Although victim impact statements have been a relatively noncontroversial part of regular criminal trials, their presence in capital cases has had a more contentious history. The U.S. Supreme Court overturned previous decisions and explicitly permitted victim impact testimony in capital cases in Payne v. Tennessee (1991) . The dissenters in that case argued that such evidence only would arouse the emotions of jurors and bias them in favor of imposing death. A body of research in behavioral economics on the “identifiable victim effect” and the “identifiable wrongdoer effect” would have supported such a view. Using a randomized controlled experiment with a death‐eligible sample of potential jurors and the videotape of an actual penalty trial in which victim impact evidence (VIE) was used, we found that these concerns about VIE are perhaps well placed. Subjects who viewed VIE testimony in the penalty phase were more likely to feel negative emotions like anger, hostility, and vengeance; were more likely to feel sympathy and empathy toward the victim; and were more likely to have favorable perceptions of the victim and victim's family as well as unfavorable perceptions of the offender. We found that these positive feelings toward the victim and family were in turn related to a heightened risk of them imposing the death penalty. We found evidence that part of the effect of VIE on the decision to impose death was mediated by emotions of sympathy and empathy. We think our findings open the door for future work to put together better the causal story that links VIE to an increased inclination to impose death as well as explore possible remedies.     

REFLECTIONS ON THE STATE OF CONSENSUS-BASED DECISION MAKING IN CHILD WELFARE

Consensus approaches to child protection decision making such as mediation and family group conferencing have become increasingly widespread since first initiated about 25 years ago. They address but are also constrained by paradoxes in the child protection system about commitments to protecting children and to family autonomy. In a series of surveys, interviews, and dialogues, mediation and conferencing researchers and practitioners discussed the key issues that face their work: clarity about purpose, system support, family empowerment, professional qualifications, and coordination among different types of consensus-building efforts. Consensus-based decision making in child protection will continue to expand and grow but will also continue to confront these challenges.     

THE EFFECT OF GENDER ON THE DECISION TO INCARCERATE BEFORE AND AFTER THE INTRODUCTION OF SENTENCING GUIDELINES*

The present study explores the relationships between gender and imprisonment decisions in Minnesota before and after the introduction of sentencing guidelines. Results from a series of logistic regression models indicate that gender alone did not have a significant impact on the likelihood of imprisonment, but women with dependent children were significantly less likely to be imprisoned before sentencing guidelines and in the years subsequent to their implementation. The findings suggest that despite the introduction of sentencing reforms, court officials tend to return to issues of substantive justice, and they appear unable to shed their individual or organizational ideas of fairness in sentencing.     

人的安全保障义务理论研究兼评《关于审理人身损害赔偿案件适用法律若干问题的解释》第6条

一、安全保障义务的区分原则所谓安全保障义务,是指行为人如果能够合理预见他人的人身或者财产正在或者将要遭受自己或者与自己有特殊关系的他人实施的侵权行为或者犯罪行为的侵害,即要承担合理的注意义务和采取合理的措施,预防此种侵权行为或者犯罪行为的发生,避免他人遭受人身或者财产损害。安全保障义务有两种:其一,物的安全保障义务。凡是对某种物施加控制力的人,如果在控制该物时没有尽到合理的注意义务,致使所控制的物造成他人损失,即应对他人承担     

THE EFFECT OF CRIMINAL VICTIMIZATION ON A HOUSEHOLD'S MOVING DECISION*

Only a small body of research addresses the impact of criminal victimization on moving (Skogan, 1990; Taub et al. 1984). Knowledge of this under-researched relationship is important for three reasons. First, moving is costly to the victim both in monetary and psychological terms. Second, if a victimization-mobility relationship exists, then it may partially explain why people migrate to suburban areas from cities. Third, because residential mobility reduces social control that, in turn, potentially results in more crime, evidence that criminal victimization leads to more mobility may help explain a cycle that perpetuates disorder and neighborhood decline (Bursik and Grasmick, 1993; Horwitz, 1990; Miethe and Meier, 1994; Skogan, 1990; Skogan and Maxfield, 1981). This study uses a longitudinal version of the National Crime Survey that includes 22, 375 households to test the hypothesis that criminal victimization is associated with an increased probability that a household moves.     

ON CASES AGAINST CORPORATE MANAGERS FOR BREACHING THEIR DUTY OF LOYALTY AND/OR DUTY OF DILIGENCE IN CHINA

The statistics of 137 cases from 14 provinces or municipalities of China concerning the disputes of corporate managers’ duty of loyalty and duty of diligence shows that the majority of companies involved in such cases are those whose shares are not publicly traded (mainly limited liability companies and all sorts of foreign invested enterprises). Joint stock limited companies (including listed companies) rarely file lawsuit against their directors, supervisors, or senior officers. The duty of loyalty has been the center of most cases. Many cases pertain to issues that are not within the list of prohibited acts in the Company Law of the People’s Republic of China to directors, supervisors, and senior managers. Therefore, courts frequently make their judgments according to one of the general provisions of the Company Law. Courts conduct different forms of legal interpretations in their decisions. On one hand, in the majority of cases, courts tend to procedurally examine the questions of facts and to literally apply the law. Actually, the duty of loyalty and duty of diligence have been applied by many courts as “the duty of compliance with law.” On the other hand, a few decisions demonstrate that some courts examine cases under the doctrine of substance-over-form, showing their creative interpretations of the law. The focus of the judicial practice in this type of cases today in China is on how courts should explain and apply the general provisions in Article 148 (1) and Article 149 (1.8) of the 2005 Company Law of China (amended in 2013).     

THE IMPACT OF THE ETHNICITY AND GENDER OF DEFENDANTS ON THE DECISION TO REJECT OR DISMISS FELONY CHARGES*

While social scientists have long been interested in the issue of racial and sexual discrimination within the criminal justice system, they have concentrated on the decisions to convict and sentence and have paid relatively little attention to the decision to prosecute. This study examines the issue of pretrial discrimination by focusing on the prosecutor's decision to reject or dismiss charges against black, Anglo, and Hispanic male and female defendants in Los Angeles. The data reveal a pattern of discrimination in favor of female defendants and against black and Hispanic defendants. Hispanic males are most likely to be prosecuted fully, followed by black males, Anglo males, and females of all ethnic groups.     

THE IMPACT OF CLIENT AND EVALUATOR GENDER ON CUSTODY EVALUATIONS

Fifty-one child custody evaluations from registries of the Family Court of Australia were analysed for evidence of sex role and sex trait stereotyping by using a content analysis program. The categories used in the content analysis included expressive and instrumental sex role traits, power-related behaviours, communications about family and marital interactions, basic care-taking, attachment, and the parents' environment. When analysed by the gender of the evaluator, it was found that male and female evaluators significantly favoured the parent of their own gender in specific categories. It is suggested that the court context has been important in influencing the content of the stereotype.     

LAWYER'S DUTY TO DISCUSS ALTERNATIVE DISPUTE RESOLUTION IN THE BEST INTEREST OF THE CHILDREN

Alternative dispute resolution (ADR) has been championed for its power to devise agreements that meet the parents' and the children's needs and for its ability to encourage parties to work together, eventually leading to stable agreements. The Model Rules of Professional Conduct do not create any ethical duty to advise, suggest, or encourage lawyers to discuss ADR with their domestic relations client. In the medical field, patients are given a choice of treatment under the informed consent doctrine, but there is no analogous doctrine in the legal field. The Model Rules of Professional Conduct should be revised to reflect the best interests of children, as well as client choice. Clients, specifically parents in domestic relation matters, are entitled to know their options, and lawyers should be obligated to provide them with the information that will enable them to make informed decisions–decisions that will benefit their children and ultimately our nation.     

ON AMBIGUITY IN PERCEPTIONS OF RISK:IMPLICATIONS FOR CRIMINAL DECISION MAKING AND DETERRENCE*

Deterrence theorists and researchers have argued that the critical dimension of sanction certainty is its level—increasing the certainty of punishment from a lower to a higher level will inhibit criminal conduct. However, the true certainty of punishment is rarely known with much precision. Both Sherman (1990) and Nagin (1998) have suggested that ambiguity about the level of punishment certainty is itself consequential in the decision to commit or refrain from crime. Here, we investigate this proposition. We find some evidence that individuals are “ambiguity averse” for decisions involving losses such as criminal punishments. This finding means that a more ambiguous perceived certainty of punishment is a greater deterrent of some crimes than a nominally equivalent but less ambiguous one. However, this effect depends on how large an individual's risk certainty perception is initially. That is, we find evidence for “boundary effects” (Casey and Scholz, 1991a, 1991b) in which this effect holds for lower probabilities but reverses for higher ones. For higher detection probabilities, individuals become “ambiguity seeking” such that a less ambiguous detection probability has more deterrent value than a nominally equivalent but more ambiguous detection probability. Results are presented from two distinct, but complementary, analysis samples and empirical approaches. These samples include a survey to college students with several hypothetical choice problems and data from the Pathways to Desistance study, a longitudinal investigation of serious adolescent offenders transitioning from adolescence to young adulthood.