Fear of Reversal as an Explanation of Lower Court Compliance

Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation—that compliance can be attributed to judges' fear of having their decisions reversed—through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance.     

Educational Competency as an Indicator of Occupational Stress for Probation and Parole Officers

Probation and parole officers are assigned the responsibility of supervising convicted criminals in a community setting in such a way that the competing goals of punishment, public safety, offender rehabilitation, and deterrence are achieved. All the while, these tasks are accomplished within the confines of shrinking budgets, large case loads, increasingly high-risk offenders, low occupational prestige, and considerable political and public scrutiny. These competing demands often result in especially high levels of work-related stress. The point of this research is to consider the divergence in occupational stress among probation/parole officers and whether or not they felt educationally prepared for their job. The data for this study were collected during a two-month study period which began on March 15, 2005. Data were collected non-randomly through a national Internet based survey of active probation/parole officers. This study considers a sub-sample of 2, 364 officers from fifteen states. The results show probation/parole officers who feel educationally under-prepared are likely to experience higher levels of occupational stress and more likely to have negative manifestations of stress than those officers who feel well-prepared.     

Conviction Statistics as an Indicator of Crime Trends in Europe from 1990 to 2006

Convictions statistics were the first criminal statistics available in Europe during the nineteenth century. Their main weaknesses as crime measures and for comparative purposes were identified by Alphonse de Candolle in the 1830s. Currently, they are seldom used by comparative criminologists, although they provide a less valid but more reliable measure of crime and formal social control than police statistics. This article uses conviction statistics, compiled from the four editions of the European Sourcebook of Crime and Criminal Justice Statistics, to study the evolution of persons convicted in European countries from 1990 to 2006. Trends in persons convicted for six offences –intentional homicide, assault, rape, robbery, theft, and drug offences– and up to 26 European countries are analysed. These trends are established for the whole of Europe as well as for a cluster of Western European countries and a cluster of Central and Eastern European countries. The analyses show similarities between both regions of Europe at the beginning and at the end of the period under study. After a general increase of the rate of persons convicted in the early 1990s in the whole of Europe, trends followed different directions in Western and in Central and Eastern Europe. However, during the 2000s, it can be observed, throughout Europe, a certain stability of the rates of persons convicted for intentional homicides, accompanied by a general decrease of the rate of persons convicted for property offences, and an increase of the rate of those convicted for drug offences. The latter goes together with an increase of the rate of persons convicted for non lethal violent offences, which only reached some stability at the end of the time series. These trends show that there is no general crime drop in Europe. After a discussion of possible theoretical explanations, a multifactor model, inspired by opportunity-based theories, is proposed to explain the trends observed.     

最高人民法院裁判、司法解释的法律地位

本文结合审判实践详细分析了最高人民法院司法解释的各种类型及其相应的法律地位,并从对最高人民法院裁判的两种认识——“个案既判力说”和“解释义务说”出发,进一步提出了“习惯法说”,指出最高人民法院的裁判和司法解释中的“立法型”解释可以构成我国以裁判和司法解释为载体的习惯法,它们的普遍效力来源于习惯法并因具有习惯法的品格而成为法律的非正式渊源。基于此,本文主张最高人民法院“立法型”司法解释和值得刊登于公报上的裁判,应尽量以习惯法的构成要求为标准,具备“人们普遍认为它是正确的”品质。     

构建刑事诉讼证人出庭作证的模式

1996年刑事诉讼法修改,使证人出庭作证成为审判方式改革的关键环节,然而十年来,证人拒证成为严重制约审判方式改革成效的瓶颈问题。当今,面临刑事诉讼法再次修改的情势,研究证人出庭作证的问题有现实性和紧迫性。证人不作证,立法不完善是关键。本文在比较我国和西方国家证人出庭制度的基础上,探索如何构建我国证人出庭的机制、落实证人出庭作证的义务;认为我国制定刑事证据法的条件还不成熟的情况下,制定专门的“证人作证条例”是良策。     

量刑规范化问题研究——以西安市碑林区人民法院为例

量刑规范化改革是党中央确定的重大司法改革项目,也是人民法院＂三五改革纲要＂的重要内容。量刑规范化问题的研究,对于规范司法行为,统一法律适用标准,促进社会公平正义,提高人民法院公信力,树立司法权威都具有重大意义。量刑规范化就是要进一步规范法官审理刑事案件的刑罚裁量权,将量刑纳入法庭审理程序,增强量刑的公开性与透明度,统一法律适用标准,更好地贯彻落实宽严相济的刑事政策。     

The Relevance of the Work of the International Criminal Court to Refugee Status Determinations

This article considers the work of the International CriminalCourt (ICC) and its overlaps with refugee law and practice.It focuses on ICC complementarity determinations. These involvethe organs of the ICC considering whether a state is willingand able to prosecute individuals accused of international crimes.The article draws attention to the fact that such determinationsprovide information on the extent to which state legal systemsare functional and non-discriminatory, and thus able to ensurethat those who violate human rights are brought to justice.Such information, it is suggested, can and should be drawn uponin deciding whether there is a real chance that an applicantfor refugee status will be able to receive the protection oftheir state through its justice system. The paper draws on thisoverlap between the work of the ICC and refugee law and practiceto support its concluding recommendation that refugee practitionersshould see, and take advantage of, the overlap between the workof the ICC and refugee status inquiries. It is suggested thatthis will help to ensure that persons deserving internationalprotection get it. It will at the same time bring us anotherstep closer to the development of a fully integrated systemfor the protection and promotion of human rights.     

The Right to Counsel in Juvenile Court: The Conundrum of Attorneys as an Aggravating Factor at Disposition

In re Gault provided procedural safeguards in juvenile courts, including the right to counsel. Decades later, judges continue to resist appointing lawyers. And, when they do appoint counsel, lawyers appear to be an aggravating factor when judges sentence youths. In 1995, Minnesota enacted law reforms, including mandatory appointment of counsel. As a cost‐saving strategy, the law also converted most misdemeanors into status offenses and restricted judges’ sentencing authority in order to deny juveniles a right to counsel. This study compares how juvenile courts processed 30,270 youths in 1994—the year before the changes—with how they processed 39,369 youths in 1999 after the amendments. We assess changes in appointment of counsel and their impact on sentencing practices. We report inconsistent judicial compliance with the mandate to appoint counsel and a positive decrease in the number of youths removed from home.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

National Identity as a Means of Reducing Ethnic Negativism

This article discusses how national identity in Russia is understood by the public and among experts who study ethnic issues. The author separates the notion of national identity into categorical identity and associative identity (i.e., the consolidating type of identity which is based on a strong feeling of connection with other citizens). The latter type of identity is present only among a third of people who identify themselves as Russian. The author further analyses the connection of this type of identity with inter-ethnic negativism. She finds that national identity does not remove bias toward abstract “others.” However, it affects direct inter-ethnic communication in the labor and family spheres. The positive impact of national identity on inter-ethnic attitudes is more apparent in the Astrakhan region, which has longer experience of inter-ethnic communication. It is argued that one obstacle to national identity having a positive impact on inter-ethnic attitudes is the lack of a clear and consistent understanding of national identity among education experts, social scientists, and journalists. The study utilizes data from Wave 24 of the Russian Longitudinal Monitoring Survey conducted by the Institute of Sociology (“The dynamics of social transformation of modern Russia in the socioeconomic, political, sociocultural, and ethno-confessional contexts,” Wave 4) and several separate regional polls conducted by the Department of Ethno-sociology of the Institute of Sociology, Russian Academy of Science between 2014 and 2016.     

An Evaluation of Teen Court as a Juvenile Crime Diversion Program

Theories of procedural justice support the American legal system's search for a fair and effective means of diverting offenders from the juvenile court system. Teen Court programs, in which juvenile offenders are tried and sentenced by a jury of peers, are one of the latest developments in attempts to positively influence offenders and direct them free of crime. The present research found that participation in Teen Court increased offenders' legal knowledge and enhanced their attitudes toward some authority figures (i.e., the judge) and themselves to a greater extent than non‐offending juveniles. In addition, only 12.6 percent of juvenile offenders re‐offended within five months of their initial Teen Court involvement. Improved attitudes toward authority and self were associated with a lower incidence of recidivism. Overall, these results contribute to the growing literature indicating that Teen Court can be an effective juvenile crime diversion program. This article also discusses methodological issues for future program evaluations.     

日本二审法院如何审查裁判员认定的事实——以日本最高法院2012年2月13日判决为例

日本在引入裁判员制度时未修改上诉制度的相关规定。随后,日本最高法院于2012年2月13日做出判决,强调刑事二审程序应采用事后审制,应当参照经验法则、逻辑法则违反说标准审查裁判员参审下第一审程序认定的事实,并对《刑事诉讼法》第382条规定的事实误认这一上诉理由的内涵做出一般性解释。通过考察日本裁判员制度实施后刑事二审程序审查方式的变化,可以发现,陪审制度与上诉制度之间存在相互促进的作用力,但由于我国人民陪审员制度的基础理论尚未得到简明论述、司法功能发挥不顺畅、上诉审审判模式定位缺失,这种作用力在我国相当微弱。人民陪审员制度的未来改革方向应当是大力发展人民陪审员制度的基础理论,整合司法改革各项措施,构建陪审员参审刑事案件大合议庭事实认定程序。     

Court compliance as a predictor of postadjudication recidivism for domestic violence offenders

This study evaluated pre- and postadjudication behavior of 220 male defendants convicted of a domestic violence-related offense using court records and police department data. Our goal was the identification of possible predictors for continued criminal behavior that could pose a risk of further harm to victims. Factors identified as significant predictors of defendant recidivism were having two or more court reports of noncompliance with domestic violence treatment, two or more warrants issued by the court for noncompliance, and two or more reports to law enforcement of new criminal activity involving the defendant. Law enforcement reports were the strongest predictor of recidivism, with an odds ratio of 7.7 and confidence interval of 3.0-19.7. These results illustrate the importance of monitoring multiple dimensions of defendant behavior while under court supervision and of communicating information on noncompliance with victims and advocates to assist in safety planning efforts.     

论警察出庭作证的程序保障——以《波士顿警察局规则与程序规则320》为蓝本

警察出庭作证问题一直都是法学理论研究和司法实务界讨论的热点问题。我国警察出庭作证之所以存在障碍,一方面是由于刑事诉讼法对警察出庭作证问题规定的不够明确,另一方面是缺乏保障警察出庭作证的程序规则,从而造成警察不出庭理所当然的错误观念。在有关警察出庭作证的程序保障方面,立法比较成熟的美国可以给我们提供一个学习、借鉴的蓝本,特别是《波士顿警察局规则与程序规则320》。     

诉讼调解的经济分析——以法院为中心

在新制度经济学的视角下,诉讼调解是一种理性活动,法院在调解程序的选择和适用上不可避免地会追逐自身利益的最大化。法院的自利行为与实现当事人利益最大化的调解制度的根本目标之间常常会发生悖离。因此,我国调解制度必须控制法院的利益驱动,规范法院的调解行为,强化当事人的程序选择权和程序决定权。