Punishment, Socially Deprived Offenders, and Democratic Community

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis: circumstances in which a moral community can no longer be plausibly said to exist.     

Coping with Imprisonment: Testing the Special Sensitivity Hypothesis for White-Collar Offenders

This study uses nationally representative prison data to test two competing theories of how white-collar offenders experience prison. The first perspective, referred to as the special sensitivity hypothesis, assumes that because of their social and demographic background characteristics white-collar offenders are more susceptible to the pains of imprisonment than other inmates. The second perspective, referred to as the special resiliency hypothesis, is based on the idea that these same background characteristics may reduce the pains of imprisonment for white-collar offenders. Ordinal and binary logistic regression models are used to estimate the effect of white-collar inmate status on several indicators of psychological adjustment. The current study finds partial support for the special resiliency hypothesis, but not the special sensitivity hypothesis. The results for each outcome are discussed regarding both theoretical and practical applications. The study’s limitations are also addressed and suggestions for future research on incarcerated white-collar offenders are given.     

Punishment and the Duties of Offenders

This paper offers a partial critique of one of the central lines of argument in Victor Tadros’ The Ends of Harm: his attempt to show that a system of deterrent punishment can avoid the objection that it treats those who are punished ‘merely as means’ to our goals, by arguing that we may legitimately use someone as a means if in doing so we are simply forcing her to do what she anyway had an enforceable duty to do. I raise some questions about the idea of forcing someone to do what she has a duty to do; about what duties a wrongdoer incurs towards his victim, and how they may be enforced; and about whether we can move from such duties to a justification of criminal punishment as a deterrent.     

Class, Status, and the Punishment of White-Collar Criminals

The treatment of white-collar offenders by the criminal justice system has been a central concern since the concept of white-collar crime was first introduced In general, it has been assumed that those higher up the social hierarchy have an advantage in every part of the legal process, including the punishment they receive as white-collar criminals. In a controversial study of white-collar crime sentencing in the federal district courts, Wheeler, Weisburd, and Bode contradicted this assumption when they found that those of higher status were more likely to be imprisoned and, when sentenced to prison, were likely to receive longer prison terms than comparable offenders of lower status. While they argued that results were consistent with "what those who do the sentencing often say about it," their analyses failed to control for the role of social class in the sentencing process. In this article we reanalyze the Wheeler et al sentencing data, including both measures of socioeconomic status and class position. Our findings show that class position does have an independent influence on judicial sentencing behavior. But this effect does not demand revision in the major findings reported in the earlier study.     

Exploring the Positive Punishment Effect Among Incarcerated Adult Offenders

The vast majority of offenders released from prison will re-offend, about two-thirds will be re-arrested with three years, most current prison inmates have prior prison experience, and many repeat offenders are devoted to what has been termed a criminal lifestyle. Findings from a survey of over 700 incarcerated adult offenders explore the effect of different measures of past punishment on inmates’ perceptions of the certainty and severity of future sanctions, and self-reported likelihood of re-offending after release. Results are mixed, with measures of current imprisonment being associated with a deterrent effect, while measures of past imprisonment (juvenile and adult) and experience with alternative sanctions being associated with a criminogenic effect. Recognizing that the data are not longitudinal and contain no measures of actual re-offending, the implied positive punishment effect is explained by applying social learning dynamics and insights from ethnographic studies. Specifically, a) non-social reinforcers-particularly affective costs and benefits experienced through offending, b) association with criminal reference groups in and out of prison, and c) a lack of legitimate, reintegrative opportunities upon reentry all serve to promote re-offending. Findings have implications for the study of offender decision-making processes, and speak to the efficacy of imprisonment as a deterrent to crime.     

Sympathy for the Devil: An Exploration of Federal Judicial Discretion in the Processing of White-Collar Offenders

Since the late 1990s, the United States has experienced a series of major corporate malfeasance events leading to the collapse of corporations such as Worldcom and Enron, predatory lending practices which devastated the nation’s real estate market and the Bernie Madoff scandal serving as prime examples. While the leading culprits in such well-publicized cases have met stiff sanctions, the common notion is that white-collar offenders are treated more leniently than street offenders by the criminal justice system. Given the scope and severity of victimization attributable to the contemporary white collar crime epidemic, the matter of sanctioning fairness and severity is of timely importance. This paper examines judicial discretion in the form of the decision to incarcerate and the length of sentences imposed for federal white collar and street level offenders. Findings inform discussion oriented around the related issues of deterrence and public safety.     

Duff on the Legitimacy of Punishment of Socially Deprived Offenders

Duff offered an argument for the conclusion that just or legitimate punishment of socially deprived offenders in our unjust society is impossible. One of the claims in his argument is that our courts have the standing to blame an offender only if our polity has the right to do so since our courts are acting as the representatives of, or to use the exact phrases by Duff, “in the name of”, or “on behalf of”, the whole polity. In this paper I will challenge that claim. I will argue that the courts can be seen as acting, not on behalf of the whole polity, but only on behalf of a subset of its citizens, namely, the just citizens (i.e. the citizens who cannot be seen to have wronged the deprived offenders).     

老年犯罪人社区矫正论

中国社会已经进入老年社会,随着老年人口在总人口中的数量的不断增加,老年人犯罪的数量也将会增加,因此,需要探讨与老年人犯罪有关的问题。本文探讨对老年犯罪人实行社区矫正的问题。     

Sentencing Juvenile Offenders to Life in Prison: The Political Sociology of Juvenile Punishment

Sentencing juvenile offenders to life in prison is the most severe criminal penalty available, yet we know little about the factors that produce jurisdictional differences in the use of such sanctions. Political explanations emphasize conservative values and the strength of more conservative political parties. Threat accounts suggest that this sentence will be more likely in jurisdictions with larger minority populations. After controlling for many explanations using count models, the results show that larger numbers of juvenile life sentences are handed out in more politically conservative states with a stronger Republican Party. Findings also show that racial politics is a factor in juvenile life sentences. Those jurisdictions that have the most blacks and have judicial elections sentence the most juveniles to life terms. By highlighting the explanatory power of public ideologies, these findings support political explanations for the harshest criminal punishment directed towards juveniles.     

刑罚执行监督机制论

我国目前应改革监督死刑执行的工作机制,取消公诉部门对死刑执行的监督权,而将其统一配置给监所检察部门。应当建立对财产刑和资格刑执行活动的监督,积极开展对监管场所管理活动的监督,对监外罪犯执行情况的监督,赋予监督纠正意见以强制执行的效力,建立健全对刑罚执行活动的监督渠道,应当强化对刑罚执行活动中发生的职务犯罪的侦查力度。     

财产刑执行检察监督问题研究

对财产刑执行检察监督是检察机关法律监督职能的应有之义。然我国现有的法律体系虽已对财产刑执行检察监督给予一定的关注,但这些规定还很难满足实践的需要。检察机关在财产刑执行中介入监督被动、监督方式单一、监督效力缺乏强制性等问题既有对非监禁刑缺乏足够重视的意识层面的因素,也有法律制度规定不完善、配套机制不健全的原因。要完善财产刑执行检察监督,需要从多个层面予以改进。     

Introduction: White-Collar and Corporate Crime in Asia

In this introduction to this special issue of the Journal we broadly consider the problem of white-collar and corporate crime in Asia. Official reports from China show the pervasiveness of current problems and the inherent dangers underlying continued economic growth and reforms. We also consider evidence bearing on the idea that Japan’s remarkably low rate of common crime is likely eclipsed by the level of white-collar and corporate crime, and briefly discuss the institutionalization of economic crime in South Korea. Issues related to the lack of study of white-collar and corporate lawbreaking in Asia are also addressed. Finally, we introduce the papers and topics of this special issue, which include comparative research on cybercrime, the enforcement of intellectual property violations, accounting fraud, financial crime, and offenses in the mutual fund industry.     

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.     

广州市未成年人社区矫正工作的创新与试点——需求评估、介入措施与实际效果

一、背景对未成年人的矫正与介入是社区矫正工作的重点内容之一。由于未成年人在各项法庭程序、特别是刑事案件的审理、羁押过程中,心理上往往受到强烈冲击,同时其家庭、求学等社会环境也往往发生极大的改变,在审判之后也容易遇到许多生活和心理上的困难,从而使其在外部环境和内部心理方面都陷入困境,触发种种社会问题。     

社区矫正中的检察监督

“社区矫正”是与监禁矫正相对的行刑方式,根据我国《最高人民法院、最高人民检察院、公安部、司法部关于开展社区矫正试点工作的通知》规定,社区矫正是指将符合社区矫正条件的罪犯置于社区内,由专门的国家机关在相关社会团体和民间组织以及社会志愿者的协助下,在判决、裁定或决定确定的期限内,矫正其犯罪心理和行为恶习并促进其顺利回归社会的非监禁刑罚执行活动。《通知》指出,根据我国现行法律的规定,社区矫正对象包括以下人员:一是被判处管制的;二是被宣告缓刑的;三是被批准暂予监外执行的,包括有严重疾病需要保外就医的、怀孕或正在哺…     

Juvenile Sex Offenders: Differences between Group and Solo Offenders

We report on findings from a study into differences in personality and background characteristics between juvenile sex offenders who commit their sex offenses on their own and those who do so in a group. Solo offenders were found to score significantly higher on neuroticism, impulsivity and sensation seeking, but scored lower on sociability. In addition, the solo offenders in the sample were more often recidivists for sexual offenses, and were more often themselves a victim of a sexual offense. Solo offenders were significantly older than juveniles who had committed a sexual offense with a group. On the basis of these results we recommend differential treatment for the two types of offenders.     

未成年犯社区矫正分析

社区矫正在预防和控制未成年人犯罪方面具有十分重要的地位和作用,符合未成年犯的心理特征,有利于克服监禁刑的弊端,有利于和发达国家的刑罚模式接轨。我国社会主义的刑事政策、社会主义的法律体系以及日趋完善的社区和健全的司法行政体系资源为未成年犯罪人适用社区矫正提供了现实可能性。针对我国未成年犯社区矫正工作中存在的问题,笔者认为,更新行刑观念、对社区矫正进行科学定位、建立专门的社区矫正机构、配备专业的矫正人员、建立适合未成年人特点的社区矫正项目以及建立未成年犯社区矫正制度的评估体系是对未成年犯社区矫正制度完善的重要举措。     

刑罚执行中检察监督的实现与完善

检察监督权是刑罚拙行体制中的重要组成部分,对于保障拙行活动正确实施、维护行刑秩序、保证行刑公正起着非常重要的作用.我国执行体制存在一些制约因素削弱和遏制检察监督权,检察监督功能没有得到充分实现,应当加强检察监肾权电没.法院应当专司审判权和刑罚变更裁定权,维护司法权威和检察监督.检察院应当规范和正确运用职务犯罪侦查权,查处刑罚执行中发生的司法人员职务犯罪,促进执行中的检察监督.走制约型监督和督察型监督结合之路,构建适合我国的刑罚拙行检察官指挥监督机制.     

完善矫正奖惩手段 强化社区矫正的刑罚执行效力

社区矫正作为非监禁刑罚执行活动，必须通过国家强制力来保障顺利实施，而最能体现社区矫正刑罚执行强制力的是对违反法律、法规和社区矫正管理规定行为的依法惩处。社区矫正试点工作开展五年来，由于惩处手段缺乏，给司法所管理社区服刑人员增加了极大的难度，社区矫正作为刑罚执行活动应当具有的权威性和严肃性遇到了严峻挑战，这一问题已成为制约试点工作健康发展的瓶颈。