RECIDIVIST IMPACTS OF DIFFERENTIAL SENTENCING PRACTICES FOR BURGLARY OFFENDERS

The research reported here attempts to examine the recidivist impacts of probationary sentences versus incarceration. Statistically controlled comparisons were run on a probability sample of 100 offenders sentenced for residential or commercial burglary convictions in 1971. Subsequent arrest, conviction. and imprisonment data were gathered from official agency records through March of 1975. The results of this study indicate that for persons sentenced for burglary the likelihood of subsequent conviction for a felony or for any crime is less for probationer offenders than for any other sentence type. The strongest predictors of recidivism (defined as subsequent conviction for crime) were age, previous incarceration experience, and sentence type. Length of sentence. type of release, and number of previous arrests were essentially unrelated to subsequent rates of recidivism.     

A reinterpretation of criminal law reform in nineteenth century England

This study challenges the traditional idealistic interpretation that the movement for reforming the criminal law in early nineteenth century England was generated by the enlightened doctrines of Jeremy Bentham. Historical evidence is presented that suggests that even without Bentham a new penal policy would have emerged. Parliament mitigated the severity of the criminal law largely in response to the business community, which demanded more swiftness and certainty in the conviction of property offenders.     

媒体对定罪量刑活动可能带来负面影响的作用机制

媒体对定罪量刑活动所带来的负面影响,主要是以舆论为中介,其作用机制表现为:媒体传播引发舆论,舆论会带来民愤与民怜两方面效果,民愤与民怜成为影响定罪量刑的两大因素。媒体对定罪量刑活动所带来的负面影响程度受刑事立法、媒体和司法制度等方面因素影响。     

从定罪的“证明标准”到定罪量刑的“证据标准”——新《刑事诉讼法》对定罪证明标准的丰富与发展

1996年刑事诉讼法只有定罪的证明标准,没有规定量刑的证明标准。多年来,理论界围绕定罪的证明标准展开热烈的讨论,实务界也进行了积极的探索。新《刑事诉讼法》首次对“证据确实、充分”从三个方面作出解释。本文认为该规定已从原来定罪的证明标准发展为定罪量刑的证据标准,是新《刑事诉讼法》对定罪证明标准的丰富与发展。     

Impact of Juror Attitudes about the Death Penalty on Juror Evaluations of Guilt and Punishment: A Meta-Analysis

This literature review summarizes the existing research examining how the attitude a potential juror has toward the death penalty impacts on the probability of favoring conviction. The summary of 14 investigations indicates that a favorable attitude toward the death penalty is associated with an increased willingness to convict (average r = .174). Using the binomial effect size display, this favorable attitude towards the death penalty translates into a 44% increase in the probability of a juror favoring conviction.     

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.     

INTEGRATING CELERITY,IMPULSIVITY, AND EXTRALEGAL SANCTION THREATS INTO A MODEL OF GENERAL DETERRENCE: THEORY AND EVIDENCE*

We propose a model that integrates the extralegal consequences from conviction and impulsivity into the traditional deterrence framework. The model was tested with 252 college students, who completed a survey concerning drinking and driving. Key findings include the following: (1) Although variation in sanction certainty and severity predicted offending, variation in celerity did not; (2) the extralegal consequences from conviction appear to be at least as great a deterrent as the legal consequences; (3) the influence of sanction severity diminished with an individual's “present‐orientation”; and (4) the certainty of punishment was far more robust a deterrent to offending than was the severity of punishment.     

The Time Penalty: Examining the Relationship Between Time to Conviction and Trial vs. Plea Disparities in Sentencing

Although studies of sentencing routinely find that defendants who plead guilty receive relatively lenient sentences compared with similarly situated defendants convicted by trial, we have yet to fully understand the role of “mode of conviction” in the sentencing process. In particular, we know little about how the size of the disparity between guilty pleas and trial convictions may depend upon time in case processing, or the timing of pleas; that is, when during the process defendants plead guilty. This is a considerable issue, as “time” often is central to explanations given for plea-trial disparities. The current study examines this central, yet seldom empirically captured, dimension of the sentencing process. Using information gathered in an ancillary data collection effort operated under the supervision of the American Terrorism Study, we differentiate between the mode of conviction and time to conviction and explore the role of “time” in sentence severity, especially with regard to the plea-trial disparity. While consisting of defendants identified in connection with terrorism investigations, and sentenced in federal courts, our study takes advantages of a unique opportunity to isolate the effects of time from the mode of disposition and to explore time correlates of sentencing outcomes. In doing so, we raise important questions about the multiple ways in which time and mode of conviction may affect sentencing more generally and contribute to the larger theoretical discussions of how punishment decisions are made.     

Do lesser pleas pay?: Accommodations in the sentencing and parole processes

One of the important questions in the discussion of plea negotiation is whether a person who has received a labeling break by exchanging a plea of guilty for a reduced charge, really benefits in terms of the sentence he receives or the time he serves. The present study analyzes differences in sentence lengths or in actual periods of incarceration according to such variables as original charge, type of plea, conviction charge, and magnitude of charge reductions.The study shows that charge reduction may have pay-offs to the extent of directly reducing the maximum sentence possible and indirectly reducing the actual amount of time served. There are indications, however, that the parole process tends to neutralize the sentence differentials associated with charge reduction. The ratio between the time served and the sentence imposed tends to get higher as the magnitude of charge reduction increases.     

The Economics of Cruel and Unusual Punishment

It has sometimes been argued that one way to reduce the costs of law enforcement would be to reduce the probability of detection and conviction (hence saving those costs), while at the same time increasing the size of the punishment. Following this strategy would keep the expected costs (to a risk neutral criminal) of committing a crime constant and hence keep the deterrence level constant; it would have the benefit, though, of reducing costs to the rest of society.There are some well-known objections to such a policy. One such objection deals with marginal deterrence: A convicted murderer serving a life sentence with no chance of parole in a jurisdiction which bans capital punishment has nothing to lose from killing a prison guard—there is no marginal deterrence to the commission of a more serious crime or any additional crime for that matter. In fact, so long as there remains any upper limit to the amount of punishment that can be inflicted upon a convicted criminal, the only ways to create some type of marginal deterrence are to reduce the punishments for less serious crimes, which will either reduce the deterrence of those less serious crimes, or alternatively to require the use of more of society's scarce resources to increase the probabilities of apprehension and conviction.It is possible to reduce this marginal deterrence problem, however, by practicing cruel and unusual punishment on perpetrators of serious crimes, i.e. by raising the limits of allowable punishment. Anecdotal evidence suggests this practice is followed unofficially with child molesters and killers of prison guards and hence provides some additional deterrence against these crimes.Despite the theoretical validity of this argument, our society has chosen to impose a constitutional ban on cruel and unusual punishment. Furthermore, over time we seem to have lowered the threshold of what is considered cruel and unusual. Following Dr. Pangloss, the concluding section of the paper examines why rational maximizers would choose to give up this additional potential deterrence. The explanations depend upon an assumed positive income elasticity of demand for humanitarianism or for insurance against the costs of punishing the innocent. While there are some reasons to accept the humanitarianism argument, the insurance argument seems more persuasive.     

SEX‐BASED DISPARITIES IN FELONY DISPOSITIONS BEFORE VERSUS AFTER SENTENCING REFORM IN OHIO*

Extending Koons‐Witt's (2002) study of whether sex‐based disparities in imprisonment likelihoods changed under sentencing guidelines in Minnesota, we examined similar models for Ohio with additional analyses of felony conviction likelihoods and sentence length for 5,472 felony defendants from twenty‐four trial courts. The main effects of a defendant's sex on imprisonment were significant during both periods (unlike the Minnesota findings), consistent with a chivalry perspective. Random coefficient models revealed that these effects were similar across the twenty‐four jurisdictions. Analyses also revealed significant postguideline reductions in sentence length disparities based on a woman's race and number of dependent children, yet increased disparities in imprisonment likelihoods postguidelines based on a woman's race and whether she was convicted on drug charges. These and other findings are discussed in the context of the Ohio legislature's implementation of a sentencing scheme that retains considerably more judicial discretion relative to Minnesota's template.     

Race and Ethnic Differences in Punishment and Death Sentence Outcomes

Abstract

A review of the capital punishment literature shows evidence of differential treatment of defendants at two separate levels: commutations and executions. However, since most prior studies have followed a dichotomous approach, little is known about other death sentence outcomes, that is, sentence declared unconstitutional, sentence overturned, and conviction overturned and Latino/a defendants have either been excluded or treated as a monolithic group. Hence, little is known about death sentence outcomes for Latinos/as, whose experiences differ from those of African Americans and Caucasians. The main objective of this study, then, is to expand on the existing data by analyzing death sentence outcomes data for California, Florida, and Texas between 1975 and 1995. Logistic regression, controlling for time under the sentence of death, prior felony convictions, age at the time of the offense, marital status, and education, shows that disparities in death sentence outcomes is not a phenomenon of the past or restricted to commutations and executions. The findings suggest that race and ethnicity and several legal variables still play a role in the legal decision-making process.     

Cumulative impact: Why prison sentences have increased*

Why has the probability of going to prison after a felony conviction increased since the early 1980s? Social scientists often try to answer this question through macro‐level research that is aimed at examining correlations between prison admissions and crime rates or sociopolitical characteristics of states. That type of macro‐level inquiry, however, does not allow for a close examination of how characteristics of offenders changed over time, and whether such changes are consequential for understanding trends in the use of imprisonment. In the current study, I take a different approach—one in which case‐level data are observed over a lengthy time span—to investigate why the likelihood of going to prison for a given crime persistently increased for several decades. The results of analyses of more than 350,000 felony cases sentenced in Minnesota during a 33‐year period show that the probability of a defendant receiving a prison sentence increased from 1981 to 2013, as would be expected. The primary reason for the rising probability of imprisonment was the significant increase in the average offender's criminal record, which more than doubled during the observation period.     

Psychiatric hospitalization history and parole decisions

The present study investigates the impact of a recent history of psychiatric hospitalization on obtaining parole for an exit cohort of male offenders. Legal variables (number of prior imprisonments, prior arrest for violent crime, use of violence in current offense, conviction for drug-related offense, history of drug use, and annual prison infraction rate), social and community support variables (marital status, education, area of conviction, family support, and occupation), and extralegal variables (race and age at release) are all examined, along with psychiatric hospitalization history, for their impact on the parole decision-making process and, ultimately, the percentage of maximum sentence served. The results from logistic regression and multiple regression indicate that psychiatric hospitalization history significantly reduces the likelihood of receiving parole and increases the percentage of maximum sentence served. This relationship persists once other variables have been controlled. Possible explanations and policy implications are discussed.     

PROBABILISTIC MODELS OF YOUTHFUL CRIMINAL CAREERS

This paper focuses on the characterization of the criminal careers of youthful offenders. It was found that these criminal careers could be modeled with parameters rejecting constant individual rates of offending and constant probability of career termination; population heterogeneity could be adequately represented by two distinct groups—designated here as "frequents" and occasionals." These parameters were estimated for the multiple offenders in a London cohort studied from their first convictions until age 25. In that cohort, the frequents were estimated to have an annual conviction rate of 1.14 convictions per year (constant with age) and a probability of career termination of .10 following each conviction; the occasionals had an annual conviction rate of .41 and termination probability of .33 following each conviction; the frequents were estimated to comprise 43% of the population, and the occasionals the others 57%. While this parsimonious model structure was adequate for the London cohort, it must still be tested with other offender populations.     

Contractualism and the Death Penalty

It is a truism that there are erroneous convictions in criminal trials. Recent legal findings show that 3.3% to 5% of all convictions in capital rape-murder cases in the U.S. in the 1980s were erroneous convictions. Given this fact, what normative conclusions can be drawn? First, the article argues that a moderately revised version of Scanlon’s contractualism offers an attractive moral vision that is different from utilitarianism or other consequentialist theories, or from purely deontological theories. It then brings this version of Scanlonian contractualism to bear on the question of whether the death penalty, life imprisonment, long sentences, or shorter sentences can be justified, given that there is a non-negligible rate of erroneous conviction. Contractualism holds that a permissible act must be justifiable to everyone affected by it. Yet, given the non-negligible rate of erroneous conviction, it is unjustifiable to mete out the death penalty, because such a punishment is not justifiable to innocent murder convicts. It is further argued that life imprisonment will probably not be justified (unless lowering the sentence to a long sentence will drastically increase the murder rate). However, whether this line of argument could be further extended would depend on the impact of lowering sentences on communal security.     

论刑事政策对刑法解释的意义

从实证研究的角度看,我国存在着两种具有法律意义的刑法解释体系:刑法有权解释体系和刑法适用解释体系。刑法适用解释对定罪量刑有着更加现实和重要的意义。刑事政策是刑法定罪量刑的基础。无论是刑法有权解释还是刑法适用解释,其内容都必须符合刑事政策的要求。     

AN EXPLICIT TEST OF PLEA BARGAINING IN THE “SHADOW OF THE TRIAL”

Bargaining in the “shadow of the trial,” which hinges on the expectations of trial outcomes, is the primary theory used by noncriminologists to explain variation in the plea discount given to defendants who plead guilty. This study develops a formal mathematical representation of the theory and then presents an empirical test of the theory using an innovative online survey with responses to a hypothetical case from 1,585 prosecutors, defense attorneys, and judges. The key outcomes are the probability that the defendant will be convicted at trial, the sentence for the defendant if convicted, and the best plea that the respondent would accept or offer. Variation in the outcomes is created through experimental variation in the information presented to the respondents. Structural regression models are estimated to fit the formal theoretical models, and the instrumental variables method is used to correct for measurement error in the estimate for probability of conviction. The data support the basic shadow model, with minor modifications, for only prosecutors and defense attorneys. Controlling for the characteristics of the individual actors and their jurisdictions adds explanatory value to the model, although these control variables did not affect the key coefficients from the shadow model.     

Developments in criminal law and criminal justice

Conclusion It follows from what has been said above that history, principle, and authority combine to compel the conclusion that § 80's guarantee of trial by jury precludes a verdict of guilty being returned in a trial upon indictment of an offence against a law of the Commonwealth otherwise than by the agreement or consensus of all the jurors. That being so, § 57 of the Juries Act, 1927, cannot, consistently with § 80, operate to authorize the conviction of either of the appellants by a majority verdict. Their convictions were unconstitutional and must be set aside.The appeal should be allowed. The orders of the South Australian Court of Criminal Appeal should be set aside and in lieu thereof it should be ordered, in the case of each appellant, that the appeal to that court be allowed, that the conviction be quashed and a new trial ordered.B.A., Columbia University 1972; J.D., Hofstra University 1975.     

共同犯罪人分类模式的比较与优化

共同犯罪人定罪量刑的科学解决,有赖于刑法对其正确分类。由于历史文化传统的差异,导致各国刑法在对共同犯罪人分类上的不同。运用比较研究的方法,探讨各国在共同犯罪人分类上的优劣,倡导共同犯罪人分类的二元论立法结构模式,将有益于我国共同犯罪刑法立法的完善。