In defense of criminal defense expenditures and plea bargaining

Given the continuing controversy over defendants' buying justice through defense expenditures, this paper shows that disparities in criminal defense expenditures can insure that it is the guilty and not the innocent who will be punished. Our model allows defense and prosecution expenditures to be simultaneously determined. We show that criminal defense expenditures result in lower expected penalties for the innocent at trial and that they helo ensure that plea bargaining efficiently screens defendants even when differential risk aversion is present. Finally, we examine how differences in defendant's wealth and the use of public defenders affect the legal system's ability to differentiate the innocent from the guilty.     

Diurnal relations of criminal behavior

In order to study the correlation between criminal acts and time of day about 900 police reports which covered a period of eight weeks were analyzed. The analysis of 561 reports which have been usuable for evaluation showed that offences against property (theft, burglary) predominantly occur during the day. The activity of burglars more often then the thieves' one goes over into the night. Aggressive offences (including robbery) are mainly observed in the evening and at night. The activity of robbers more often than the ordinary aggressive offenders' one goes over into the next morning. Alcoholic intoxication hardly occurs with offences against property but is significant as far as aggressive offences are concerned. However the day-time variation of occurrence of aggressive offences without intoxication is similar to that of intoxicated offenders.     

Community standards of criminal liability and the insanity defense

Two experiments (N=71) compare lay standards of insanity to standards incorporated in American legal codes. In Experiment 1, case vignettes provided only legally relevant information about defendants' degrees of impairment in cognition or in behavioral control. Respondents' judgments of criminal liability ornot guilty by reason of insanity (NGRI) reflected an exculpatory standard of substantial impairment in both cognition and control. In Experiment 2, case vignettes provided realistic information about defendants' psychiatric diagnoses; respondents had to infer levels of cognitive and control impairment. Results showed that respondents made highly idiosyncratic inferences based on diagnostic categories, but once made, these inferences predicted NGRI judgments. Implications of the concordance between laypeople's rules for assigning NGRI verdicts and the rules used in American legal codes are discussed.Daniel Bailis gratefully acknowledges the support of Public Health Service grant No. 5T32 MH18021-07 for Research Training in Social Psychology during the time in which the present research was conducted. John Darley wished to acknowledge the generous support of the John Simon Guggenheim Foundation and Princeton University. Study 2 presents work done for the Princeton University undergraduate thesis of Tracy Waxman. The authors are grateful to Norman J. Finkel, Valerie Hans, and three anonymous reviewers for comments on an earlier draft on this article.Northwestern University.     

Mediation as an alternative to criminal prosecution

In several American communities, paraprofessional mediation has become a substitute for criminal prosecution when defendant and victim have been engaged in a prior relationship. This article describes such a mediation project and its training program. It present a detailed account of two actual mediation sessions. An analysis of these sessions highlights some of the problems in mediating interpersonal disputes, particularly questions about underlying cause and the effects of different perceptions about the role of conflict in human interaction. The article also suggests a series of hypotheses to be investigated in further research on mediation.The research on which this paper is based was partially supported by grant No. 77-NI-99-0019 from the National Institute for Law Enforcement and Criminal Justice, U.S. Department of Justice. The views expressed are those of the authors only. We appreciate the cooperation received from George Nicolau and Ann Weisbrod of the Institute for Mediation and Conflict Resolution and from the staff of the Fosterton mediation project.     

关注刑事辩护律师的权益保障

年初本刊采访最高人民检察院常务副检察长张耕时,张耕副检察长曾透露说高检正在起草一个有关保障律师依法执业的专门规定。果然,最近最高人民检察院公开发布了这个颇受司法界关注的司法文件枣《关于人民检察院在刑事诉讼中保障律师依法执业的规定》(以下简称《规定》)。     

Physicians as criminal defendants

Contrary to the commonly held notion that high occupational status shields a deviant individual from sanctions, some theorists have proposed a negative relationship between punishment and status when the offending behavior is of low to moderate seriousness, but a positive relationship when it is of high seriousness. This phenomenon has been termed “status liability,” and previous research suggests that physicians are especially vulnerable to its effect. The present study examines status liability in terms of diverse medical specialties to determine whether status differences among specialists produce measurably different public reactions to deviance. Results follow the pattern predicted by the status liability hypothesis. The findings also suggest policy implications in such judicial areas as voir dire, Medicaid, fraud enforcement, and malpractice litigation.     

Communal response to criminal behavior in the kibbutz during periods of crisis

This research examines whether the situation of crisis which has been developing in the majority of secular kibbutzim since the eighties has influenced the attitudes of kibbutz members towards criminal behavior. Previously, the kibbutzim were accustomed to dealing with any deviant behavior in their midst, with the exception of serious crime, by means of their own internal control institutions. Our assumption is that there would be a greater tendency among members of kibbutzim in crisis, as compared to those in a situation of stability, to see criminal behavior as a disturbing, even threatening, social phenomenon, and to turn to outside agencies, such as the police. In order to examine this hypothesis, we selected 230 kibbutz members from six well-established secular kibbutzim in the center of the country, which differ from each other with regard to levels of crisis which in turn determined by means of specific economic and social criteria. Our findings show that criminal behavior is more prevalent in the kibbutz than the members themselves believe. The more stable the kibbutz, the more the members continue to rely on their own conventional methods of dealing with criminal behavior, while the more severe the crisis situation, the greater the tendency to pass the responsibility for the offender to outside agencies.     

中澳刑事被害人诉讼地位及权利比较

在现代刑事诉讼制度中,对被害人合法权益的保障日渐突出。本文结合我国立法和司法实践的现状,通过比较中国与澳大利亚在被害人诉讼地位和权利保护方面的异同,对如何完善我国的被害人权利保障机制提出了相应的建议。     

精神失常抗辩及其刑事证明——以美国法为视角

心智健全推定卸除了控方对被告人心智健全的证明责任,将争点形成责任交由辩方承担。而精神失常在美国刑事法中属于积极抗辩事由,根据联邦和多数州的司法实践,由辩方承担提出初步的举证责任,并承担“清晰、信服”程度的说服责任。相较之下,我国目前刑事实体法的建构与刑事证明之间没有明确的衔接,以至于刑事证明的功能无法有效实现。司法精神病鉴定是目前查实被告人是否精神失常的主要手段,但启动权主要其中在公安司法机关手中,辩方权利受到较大限制,而对鉴定人以及鉴定证据亦缺乏体系性的证据审用规则。司法精神病鉴定应当纳入刑事证明的轨道,辩方如欲推翻心智健全推定,应提出相应证据,继而说服责任的分配要区分辨方证明主张：该鉴定意见是对控方对犯罪主观方面要素证明的反驳,还是主张责任阻却。前者由控方证明到排除合理怀疑的程度,而后者则由辩方证明到清晰、信服的程度。在此证明原理的基础上,鉴定人有义务出庭对鉴定意见进行口头陈述或展示,并接受对造的质证。鉴定意见的证据能力则由法庭依法判断,其证明力则由法庭自由评价。     

Biological protective factors for antisocial and criminal behavior

Purpose

Although risk factors are typically the focus of criminological research, increasingly researchers are interested in identifying protective factors that reduce the probability of antisocial behavior, either in the presence or absence of risk factors. Biosocial researchers are in an opportune position to research factors that protect against the development of antisocial behavior in high-risk individuals, given biosocial criminology’s focus on the interaction between biological and social factors. The purpose of this article is to review neuropsychological and psychophysiology research into protective factors.

Results

Of the neuropsychological factors, high IQ has the best-replicated protective effects, though executive functioning is also a promising candidate as a protective factor. High resting heart rate, as well as enhanced autonomic fear conditioning and attentional processing may also have protective effects.

Conclusions

Though research into biological protective factors is currently limited, there is promising evidence that biological factors could help us to better understand why some individuals do not become antisocial or criminal in the presence of high social risk. Neuropsychological and psychophysiological measures are relatively easier and less costly to operationalize than other biological measures, making them promising candidates for criminological researchers who would like to incorporate biological measures into their research designs.     

Counsel for the poor: An evaluation of contracting for indigent criminal defense

This paper examines the cost-effectiveness of contracting as an alternative to traditional assigned counsel and public defender systems for providing representation to poor people accused of crimes. Contracting has been endorsed by many as a means of conserving public resources while providing experienced counsel; it also has been criticized as a means of ensuring that minimal public investment, and hence minimally qualified representation, is offered to the poor. This study tests the hypothesis that contracting, particularly competitively bid contracting, is less costly than the alternatives, and offers some observations about variation in types of contract and the consequences of this variation for program costs. This study differs from most research on indigent defense in that it is based on survey data from all felony court jurisdictions in a single state, Michigan. The results suggest that competitive bidding is indeed less expensive than the alternatives, but simultaneously raise questions about the implications of this financial advantage for program quality. These findings also suggest that contracting, paradoxically, is adopted in small jurisdictions whose bars cannot support competitive bidding; as a result, these jurisdictions pay a high price for this type of program.     

Maternal cigarette smoking during pregnancy and criminal/deviant behavior: a meta-analysis

A growing body of empirical literature has emerged examining the somewhat inconsistent relationship between maternal cigarette smoking (MCS) during pregnancy and children's subsequent antisocial behavior. To systematically assess what existing studies reveal regarding MCS as a criminogenic risk factor for offspring, the authors subjected this body of literature to a meta-analysis. The analysis reveals a statistically significant--yet rather small--overall mean "effect size" of the relationship between MCS and the likelihood children will engage in deviant/criminal behavior. In addition to being rather moderate in size, the MCS-crime/deviance relationship is sensitive to a number of methodological specifications across empirical studies--particularly those associated with sample characteristics. The implications of this modest, and somewhat unstable, relationship are discussed in terms of guidelines for future research on this subject and how existing theoretical perspectives may be integrated to explain the MCS-crime/deviance link.     

Foundation for a temperament-based theory of antisocial behavior and criminal justice system involvement

Background

Temperament has been shown to be associated with behavior for millennia but has not been explicitly used in a theory of crime.

Methods

This state-of-the-art review incorporates theory and research from over 300 studies from developmental psychology, psychiatry, genetics, neuroscience, and criminology to introduce a temperament-based theory of antisocial conduct with criminal justice system implications.

Findings

Two temperamental constructs—effortful control and negative emotionality—are significantly predictive of self-regulation deficits and behavioral problems in infancy, in toddlerhood, in childhood, in adolescence, and across adulthood.

Conclusion

Unlike other theories that focus merely on explaining problem behaviors, our temperament approach also explains negative and aversive interactions with criminal justice system practitioners and associated maladjustment or noncompliance with the criminal justice system. A program of research is also offered to examine and test the theory.