刑罚执行的基础要件:狱政管理性质分析

刑罚执行是刑事司法活动的最后一道工序 ,狱政管理是这道工序的组成部分 ,而且是最基础的工作。明确狱政管理的性质 ,是研究监狱执行刑罚全部问题的一个基本出发点。狱政管理是一种刑事管理活动 ,同时又是一种特殊的行政管理活动 ,还是改造罪犯的手段之一。     

Administrative interventions on police shooting discretion: An empirical examination

In August, 1972, the New York City Police Department promulgated administrative shooting guidelines and shooting incident review procedures far more restrictive than former statutory “defense of life” and “fleeing felon” justifications for police shooting. Using a data base that includes all reported New York City police firearms discharges and serious assaults on police between 1971 and 1975, this article examines the effects of the new guidelines and procedures on shooting frequencies, patterns, and consequences.Great decreases in “fleeing felon” shootings, “warning shots,” and shooting-opponent injuries and deaths were found to be associated with the new rules. This change also appeared to have a favorable effect on line-of-duty officer deaths and serious injuries. The implications of these findings are discussed.     

Public markets, private orderings and corporate governance

In the New Property Rights approach the degree of incompleteness of markets is taken independently of the cost of the public ordering and of their efficiency relatively to private orderings. In this approach “public markets,” similarly to a Swiss cheese, are either assumed to be nonexistent empty holes (because of infinite third party verification costs) or assumed to be smooth and efficient (because of zero third party verification costs). When we allow for positive but not infinite third party verification costs we are necessarily pushed back to the insights of Commons, Coase, Fuller and Williamson. The degree of (in)completeness of public markets becomes an endogenous economic problem and managers can be seen as agents that make “second order” specific investments to run specific relations that cannot be efficiently handled by public markets. Managers and the public authorities build respectively private and public “legal equilibria” that set the working rules within which transactions can take place. Private and public legal equilibria are not only substitutes but also complements. This complementarity is an important source of the path dependency that characterizes the development of different legal systems. The framework is applied to GM’s acquisition of Fisher Body. We suggest that, contrary to the claims of the New property Rights approach, the advantages of the acquisition were not due to the superior incentives of the new private owners but should be rather related to the replacement of public markets by the new private ordering set up by Alfred Sloan.     

Fair use and copyright protection: a price theory explanation

Copyright scholars suggest that computer technology has reduced transaction costs associated with copyright transfer, allegedly eliminating the need for the fair-use doctrines that were developed to allow limited use of copyrighted material in situations where the transaction costs of securing authorized use would be prohibitive. According to this emerging view, in an ideal world with no contracting costs, third party use of copyrighted material could realistically only take place with the express consent of the copyright holder. This would give the author absolute power to dispose of his work, including the right to veto uses, without the possibility of a fair use “override” of any sort.This paper shows the limits of such transaction cost-based arguments. If transaction costs provide the dominant economic justification of “fair-use” doctrines, an exogenous reduction of such transaction costs would limit the scope and application of the defense of fair use. Nevertheless, in this paper we suggest that, when viewed in light of the anticommons theory, fair-use doctrines retain a valid efficiency justification even in a zero transaction-cost environment. Fair-use defenses are justifiable, and in fact instrumental, in minimizing the welfare losses prompted by the strategic behavior of the copyright holders. Even if copyright licenses can be transferred at no cost (for instance, in a “click and pay” frictionless computer world), the strategic behavior of the copyright holders would still create possible deadweight losses.In this context, we identify a number of critical variables that should guide and constrain the application of fair-use doctrines. These variables include (a) the number of copyright holders; (b) the degree of complementarity between the copyrighted inputs; (c) the degree of independence between the various copyright holders in the pricing of their licenses; and (d) ability to price discriminate.     

Women's accounts of their prison experiences: A retrospective view of their subjective realities

This article examines the subjective experiences of previously imprisoned women. Their retrospective narratives of prison life reveal overt behavioral and underlying structural tensions that create an atmosphere of fear and violence. Furthermore, attitudes of indifference between inmates and correctional staff often contribute to fostering an environment of neglect. The study, based on in-depth interviews with fifty-four female subjects, describes and analyzes several aspects of the socialization process for inmates as related by women on parole. The research shows that the “pains of imprisonment” for women are suffered to a greater degree than previously acknowledged. Prison for these women is a social world filled with anxiety and, perhaps, represents a punishment well beyond what the law intended.     

Pandora's box: Women guards in men's prisons

The assignment of women guards to security positions in men's prisons in the United States is increasingly a correctional reality. This article considers the problems these women face in entering a previously all-male, “front-line” occupation. The discussion focuses on (1) how well female officers meet the security demands of security work, (2) the nature of, and basis for, difficulties in relating to male co-workers, and (3) occupational socialization and advancement. Drawing on available empirical and anecdotal data on women officers in male prisons and on the more general prison guard literature, the intent is to present what is known about these women officers. A research agenda is offered to guide inquiry into the problems of the sexual integration of correctional institutions.     

One step up, two steps back: The progression of perceptions of women's work in prisons and jails

The corrections workplace has undergone tremendous change during the past quarter century. Judicial intervention, public and media attention, and “get tough on crime” initiatives have all led to a variety of changes. Opportunities to work in corrections, in all positions, have increased dramatically. In an effort to determine how correctional staff today regard the presence and capabilities of women in the work environment, questions were specifically developed that addressed this issue and included in a more broadly conceived questionnaire administered to correctional staff in several prisons and jails in a western state. In this article, findings are reported regarding the gender-related items. It was found that, while jail and prison staffs generally shared similar views regarding most gender-related issues, there were some significant differences between both male and female respondents and those with prior military experience on the items regarding the competency of female staff.     

Positive Administrative Control: Using Social Exchange to Assess Managerial Impacts on Inmate Misconduct

Positive administrative control uses social exchange theory to explain how management impacts institutional rates of inmate disorder. This study proffers that prison managers can use their relationship with staff to influence them to act in accordance with agency desires, which in turn affects institutional disorder rates. Using data from the Federal Bureau of Prisons, the model demonstrates an indirect connection exists between management/staff relationships and disorder. However, two of the scales used to explain positive administrative controls’ sway—the leader-member exchange (LMX) and perceived organizational support (POS)-had opposing effects. Increases in the quality of the leader-member exchange (LMX) was associated with decreases in misconduct rates, while increases in perceived organizational support (POS) was associated with increases in misconduct rates.     

For whom does prison-based drug treatment work? Results from a randomized experiment

Objectives

Prison-based therapeutic community (TC) drug treatment followed by community aftercare is widely recognized as the most effective treatment paradigm for drug-dependent offenders. However, few randomized experiments have addressed this question and fewer studies have examined how interactions between treatment modality and individual characteristics may explain variations in outcomes.

Methods

Using a randomized experimental design, this study examined the effects of treatment modality [TC vs. Outpatient (OP) group counseling], individual psychosocial characteristics (e.g., risk, negative affect), and interactions on reincarceration over a 3-year follow-up period. Survival analysis using Cox regression with covariates was used to analyze data obtained from 604 subjects at a specialized drug treatment prison.

Results

The expected advantage of TC failed to emerge. Critical and heretofore unexamined interactions between treatment modality (TC vs. OP), inmate levels of risk, and negative effect help explain these unexpected findings.

Conclusion

The superiority of prison TC to less intensive OP counseling was not supported. The effects of TC appear to be conditioned by critical responsivity factors that have received little empirical attention.     

监狱警察职务犯罪针对性预防机制探究

尽管理论及实务界已就预防监狱警察职务犯罪提出诸多的建议机制,但监狱警察职务犯罪现象仍此起彼伏,究其原因是因为没有结合监狱警察职务犯罪的独特特点而提出针对性的预防机制;相比较于其他司法行政系统工作人员的职务犯罪,监狱警察职务犯罪具有身份特殊、犯罪主体明确等特点;监狱警察职务犯罪的发生原因也与监狱这一特殊工作环境以及监狱警察职权范围特殊密切相关;应该构建监狱警察权力监控机制以及检察院、监狱之间的联席会议等针对性预防机制,以防范监狱警察职务犯罪现象的发生。     

Reclaiming the Power to Punish: Legislating and Administrating the California Supermax, 1982–1989

This article examines how increasingly punitive prison conditions, epitomized by the birth and spread of the supermax prison, developed in the United States. This analysis builds on a growing literature about the “new punitiveness” of U.S. punishment policy and its global proliferation. This article shifts the focus away from the policies that have led to increasing rates of incarceration, however, and toward the policies that have shaped the conditions of incarceration. Drawing on archival research and more than 30 oral history interviews with key informants, I examine the administrative and legislative processes that underwrote the supermax innovation in California in the 1980s. During California's late twentieth‐century prison‐building spree, prison administrators deployed multiple rhetorics of risk to extend their control over conditions of confinement in state prisons. As the state invested billions of dollars in prison building initiatives, legislators, who were focused primarily on building prisons faster, ceded authority over prison design and conditions to prison administrators. In the end, rather than implementing legislative policy, prison administrators initiated their own policies, institutionalizing a new form of “supermax” confinement, pushing at the limits of constitutionally acceptable practices.     

论完善对监狱行刑的监督

监狱是自由刑行刑的主要场所。基于刑罚的目的的二元性,监狱兼有惩罚与矫正的双重行刑目标。同时监狱行刑作为特殊的行政权力,具有被滥用的高危风险。为了完整实现行刑目的,保障服刑人员的权利,各国均对监狱的行刑权力设置了相应监督机制,对极易被滥用的行刑权力进行规制。在我国由于报应观念的深植和行刑个别化社会化色彩不强,尤需借鉴先进经验完善对监狱的监督,以确保罪犯改造的效果和行刑程序公正。     

刑事案件精神病鉴定实施情况调研报告

本文以法律职业群体和司法精神病学鉴定专家为调研对象,就刑事程序中的精神病鉴定及相关问题进行了调研,通过运用访谈、问卷、阅卷、调取司法统计数据等实证研究方法对目前我国刑事程序中精神病鉴定的现状、问题及成因展开了研究.研究的主要问题包括司法精神病鉴定主体与鉴定管理体制,鉴定程序的启动,公安司法人员对鉴定意见的审查、判断,对...     

Controlling Consensual Sex Among Prisoners

Despite recent legal advances for LGBT citizens, including the Supreme Court's recognition of a constitutional right to engage in private, consensual, same‐sex sex, prisons continue to regulate sex in much the same way they have been doing since the nineteenth century. Nationwide, prisons bar consensual sex among prisoners, and those who violate this policy face severe punishment, including administrative segregation. Interviews with prison officials from twenty‐three states uncover beliefs linking consensual sex with violence that places the overall security of the prison at risk. While supporting LGBT rights and the decriminalization of same‐sex sex in society, officials insist that prisons are not suited for similar change. This article explains why prison officials have been so committed to this policy and argues that the time has come to reconsider prison regulation of consensual sex.     

Taking the Law Into Our Own Hands: Structured Sentencing, Fear of Violence, and Citizen Initiatives in Washington State

This paper examines the impact of citizen initiatives on Washington State's system of structured sentencing. Criminal justice sentencing guidelines were implemented in Washington's juvenile court system in 1978 and in its adult felony courts in 1984. In the twenty years since, both systems have experienced significant changes, many of which impact judicial and administrative discretion. Early modifications to the guidelines were driven by legislative and administrative concerns (budgeting, prison population management). More recent changes have been driven by citizen initiatives fostered as a response to public fear of crime and violence. Increasingly, the public has rejected the advice and management of adult sentencing guidelines by criminal justice professionals, and taken a direct hand through the initiative process in setting the limits of judicial and administrative discretion. As a result, structured sentencing has become more complicated and less internally consistent. It remains unclear whether this is the inevitable price of growth in single issue politics and more direct public involvement in the determination of sentencing policy     

Managing the costs of modern corrections: Implications of nineteenth-century privatized prison-labor programs

The increasing use of incarceration during the 1980s has resulted in substantial enlargement of the American prison population. In addition, the costs of providing correctional services to this enlarged population has grown dramatically. One solution proposed to address the issue of escalating correctional costs is privatization. Through an examination of the early nineteenth-century New York experience with private-sector prison industrial programs, this article considers the value of privatization as a remedy to unacceptable correctional costs. Nineteenth-century problems are identified, and the implications of these problems for current privatization initiatives, both related and unrelated to prison industries, are discussed.     

Maladaptation of regulation to hybrid organizational forms

This paper argues that standard regulatory policies might be inadequate and may even introduce perverse effects when applied to hybrid organizational forms. Using the case of the “certifying system” adopted for several French agricultural products as a benchmark for the discussion, with particular insights provided by the label chicken case, the paper emphasizes the tight coordination process required by the characteristics of the transactions at stake as well as by the necessity to send adequate signals to consumers. However, unadapted regulations tend to misinterpret the resulting contractual arrangement as collusion. This interpretation is challenged here: The form adopted achieves a high degree of efficiency and reduces transaction costs without reducing competition. We conclude that a new approach to regulations may be required, combining two criteria: contestability and remediability.     

论行刑社会化中的我国社区矫正制度

明确我国社区矫正的对象及管辖范围,确立司法行政机关执法主体的法律地位,加强社区矫正人员的队伍建设,全面规范矫正方法,实行差别化的矫正管理,乃是完善当前我国社区矫正制度的重要任务。     

Does Mandatory Diversion to Drug Treatment Eliminate Racial Disparities in the Incarceration of Drug Offenders? An Examination of California’s Proposition 36

Objective

This paper addresses previous shortcomings in the literature on racial disparities in incarceration for drug offenders by taking advantage of a change in sentencing policy in California and a rich administrative dataset that is able to create a sample of comparable White and Black offenders.

Method

We use a nonparametric propensity weighting approach to identify similarly situated White and Black male offenders charged with drug-related offenses. We combine this approach with a difference-in-differences model to estimate the effect that a change in California sentencing law for convicted non-violent drug offenders had on racial disparities in prison and drug treatment dispositions.

Results

We find substantial reductions in the probability of a prison sentence after the policy change, but not differentially for Blacks. Blacks remain more likely to go to prison than similarly situated Whites after the policy, although the policy does lead to more referrals to treatment for Blacks.

Conclusions

This paper shows that even after comparing Blacks and Whites in similarly situated contexts that racial disparities in prison commitments remain after sentencing law changes that mandate diversion to drug treatment. The results suggests that addressing racial gaps in the commitments to state prisons will likely require more than shifting the eligibility of drug convictions for prison, as accumulated criminal histories are the primary driver of prison sentences. This means that expanding diversion options from prison alone will not reduce the racial gap in commitments to prison for drug offenses more than incrementally.

     

Practical guidelines on incorporating “partnering” within IT agreements for public sector bodies

“Partnership” and “partnering” are two of the most frequently used terms in public sector procurement. They may be used by both customers and suppliers to justify their respective negotiating positions. A supplier may argue that, since the agreement is a “partnership agreement”, there should be no service credits or liquidated damages payable. The customer on the other hand, may argue, on similar grounds, that it wants to benchmark the supplier and have a broad right to audit every aspect of the supplier’s business.But despite being well used phrases, most guidance relating to these concepts does not define how “partnerships” or “partnering” is to work in practice. While most talk of the supplier and the customer working together “in partnership” with common aims, there is little information available as to how this will be incorporated into agreements, particularly in the context of large scale IT procurements.¹ The purpose of this article is to review the available guidance and detail some of the ways in which this guidance can be incorporated into legal agreements.