Creative Death Penalty Reform in China: The Case of Drug Transportation

China's criminal justice system has, for decades, been consistently notorious as one of the world's most punitive. Recent reform of the nation's decades‐long harsh criminal justice policy to instead balance severity with greater leniency has given reformist‐minded judges and legal experts some cause for optimism. However, it has also created a judicial dilemma in determining how to apply this more lenient ethos in sentencing some capital crimes. This is particularly the case for the capital crime of transporting drugs, which is the focus of this article. This article reveals how reform can be achieved through skillful legal maneuvering for a crime category that is caught between two contesting views of the social benefits of punishment.     

Sentencing Councils and Victims

This article explores the place victims have, and should have, in bodies that formulate sentencing guidelines, with particular reference to sentencing guidelines in England and Wales and the Sentencing Council's obligation under the Coroners and Justice Act 2009 to have regard to ‘the impact of sentencing decisions on victims of offences’ when devising guidelines. The issues are situated in political and penological contexts; the place of victims in sentencing commissions or advisory bodies in the USA, England and Australia is analysed and the meaning and significance of the Sentencing Council's obligation towards victims is considered, relating the specific obligation to broader issues concerning the place of victims within bodies that formulate sentencing guidelines. While incorporating victims within sentencing commissions might undermine commissions’ aims, it can play an important role in helping to boost public confidence in criminal justice, a touchstone for all western governments’ criminal justice policies.     

Legal,Psychological, and Behavioral Outcomes

States have responded to the public's outrage at rising juvenile crime by revising their transfer statutes to make it easier to transfer juvenile offenders for trial and sentencing in criminal court and possible incarceration in adult prisons. These changing trends in juvenile justice raise three questions about what actually happens to juveniles once they are in the adult criminal justice system. To what extent does trial in adult court and/or incarceration in adult prisons promote or retard community protection, juvenile offenders' accountability, and the development of competencies in juvenile offenders? This article discusses state transfer laws and the legal consequences of criminal court prosecution, and analyzes current research on deterrence effects of transfer laws, conviction and sentencing in juvenile versus criminal court, recidivism rates in juvenile versus criminal court, and conditions and programming in juvenile versus adult correctional facilities. The research findings have two important implications for juvenile justice policy: the number of juvenile cases transferred to criminal court should be minimized, and imprisonment of juveniles in adult facilities should be avoided whenever possible. These implications are discussed, and directions for future research are identified.     

Emotion,Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations

This article explores the role of emotion in the capital penalty‐phase jury deliberations process. It is based on the qualitative analysis of data from ninety video‐recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury's sentencing process, and deployed in penalty‐phase decision making. The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion‐based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.     

CONTEXTUAL DISPARITIES IN GUIDELINES DEPARTURES: COURTROOM SOCIAL CONTEXTS,GUIDELINES COMPLIANCE,AND EXTRALEGAL DISPARITIES IN CRIMINAL SENTENCING1

This study examines the theoretical and empirical linkages between criminal court social contexts and the judicial use of sentences that deviate from the recommendations of sentencing guidelines. Individual sentencing data from the Pennsylvania Commission on Sentencing (PCS) are combined with county‐level measures of social context to examine predictions about the role courtroom characteristics play in judicial departures. Results from hierarchical analyses suggest that the likelihood of departure varies significantly across courts, even after accounting for variations in individual case characteristics. Several measures of courtroom social context—including the size of the court, its caseload pressure and the overall guidelines compliance rate—are significantly related to the individual likelihood of receiving a departure sentence. Moreover, the social context of the court also conditions the influence of various individual‐level sentencing considerations. Findings are discussed in relation to contemporary theoretical perspectives on courtroom decision making and future directions for research on contextual disparities in criminal sentencing are suggested.     

The effect of local policy on the sentencing patterns of state wards

A large number of studies have identified individual and offense characteristics that predict the severity of criminal justice system sanctions against juvenile delinquents. However, very few studies have examined the effect of local decision making procedures and funding practices on sentencing outcomes. As such local practices could have important effects on sentencing, the present study compared the sentencing of juvenile state wards in counties that differ markedly in local policies. The hypothesis was that the availability of state, as opposed to local, funding for institutional placement (called a “charge-back” policy) in one of the counties would result in a more severe sentencing decisions and that this county's use of board of decision makers instead of individual caseworkers would result in harsher treatment of youths differentiated by minority status, sex, or family status. This difference might be due to the board's insulation from review.     

Hukou Status and Sentencing in the Wake of Internal Migration: The Penalty Effect of Being Rural‐to‐Urban Migrants in China

While the disparate legal treatment of immigrants in Western jurisdictions has been well documented in sociolegal scholarship, the potential legal inequality experienced by rural‐to‐urban migrants in China, who have become China's largest disadvantaged social group, has not garnered much attention. To fill the gap, this article empirically examines sentencing disparities related to the Hukou status of criminal offenders by employing quantitative data on criminal case processing in China. The results of our analysis reveal that rural‐to‐urban migrant defendants are more likely to be sentenced to prison than their urban counterparts. In addition, the penalty effect of being a rural‐to‐urban migrant is further magnified in jurisdictions with a larger concentration of migrants. Our findings suggest that discrimination against rural‐to‐urban migrants has become an emerging, significant form of legal inequality in China's criminal justice system, refracting and reinforcing the deep‐seated structural inequality associated with Hukou status in China. The research and policy implications of these findings are discussed.     

Criminal Law beyond the State: The European Model

This article will analyse two models of criminal law beyond the State, which are here termed ‘eunomic’ and ‘dialogic’. It will then focus on one case study, European criminal law, which was inherently ‘dialogic’ until the last decade of the past century but has now quite unique features. In accordance with classic liberal views, criminal law has always been conceptualised as one of the most salient attributes of the sovereign State. The monopoly on the use of violence was to be legitimised by the State's concern for the sphere of autonomy of the individual. It is submitted in this article that it is precisely this condition that is lacking in the current European model, which promotes security‐oriented paradigms of self‐fulfilment and effectiveness. However, criminal law, if properly conceived, could in theory function as a powerful vehicle of integration.     

人身危险性在量刑中的思考

刑事古典学派认为惩罚犯罪就是惩罚犯罪行为,所以提出在量刑中主要考虑的是社会危害性的大小;而刑事人类学派和刑事社会学派注重对犯罪分子个体的研究,从犯罪个体中去研究惩罚的力度,在量刑的时候着重考察犯罪分子的人身危险性的大小.两者的争论由来已久,在中国的刑法理论界就是主要采取了刑事古典学派的观点,认为惩罚力度大小应该与罪行的大小相适应,造成的社会危害程度决定刑罚的轻重.那么对于犯罪分子的人身危险性在量刑时的作用究竟应该有多大呢?试从实践入手,针对我国现行法律的规定来阐述一下人身危险性在量刑中的作用,从而完善我国刑法的量刑原则.     

SENTENCING HOMICIDE OFFENDERS IN THE NETHERLANDS: OFFENDER,VICTIM, AND SITUATIONAL INFLUENCES IN CRIMINAL PUNISHMENT*

Empirical investigations of criminal sentencing represent a vast research enterprise in criminology. However, this research has been restricted almost exclusively to U.S. contexts, and often it suffers from key data limitations. As such, an examination of more detailed international sentencing data provides an important opportunity to assess the generalizability of contemporary research and theorizing on criminal punishment in the United States. The current study investigates little-researched questions about the influence of prosecutorial sentencing recommendations, victim/offender relationships, and extralegal disparities in sentencing by analyzing unique data on the punishment of homicide offenders in the Netherlands. The results indicate that offender, victim, and situational offense characteristics all exert important independent effects at sentencing and that prosecutorial recommendations exert powerful influences over judicial sentences. The article concludes with a discussion of future directions for comparative sentencing research across international contexts.     

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.     

The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long‐term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.     

FACIAL PROFILING: RACE,PHYSICAL APPEARANCE,AND PUNISHMENT*

We investigate the associations among physical appearance, threat perceptions, and criminal punishment. Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions. We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants. Our findings indicate that Black defendants are perceived to be more threatening in appearance. Other facial characteristics, such as physical attractiveness, baby‐faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores. Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics. These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision‐making, and sociological work on race and punishment.     

CUMULATIVE DISADVANTAGE: EXAMINING RACIAL AND ETHNIC DISPARITY IN PROSECUTION AND SENTENCING

Current research on criminal case processing typically examines a single decision‐making point, so drawing reliable conclusions about the impact that factors such as defendants’ race or ethnicity exert across successive stages of the justice system is difficult. Using data from the New York County District Attorney's Office that tracks 185,275 diverse criminal cases, this study assesses racial and ethnic disparity for multiple discretionary points of prosecution and sentencing. Findings from multivariate logistic regression analyses demonstrate that the effects of race and ethnicity vary by discretionary point and offense category. Black and Latino defendants were more likely than White defendants to be detained, to receive a custodial plea offer, and to be incarcerated—and they received especially punitive outcomes for person offenses—but were more likely to benefit from case dismissals. The findings for Asian defendants were less consistent but suggest they were the least likely to be detained, to receive custodial offers, and to be incarcerated. These findings are discussed in the context of contemporary theoretical perspectives on racial bias and cumulative disadvantage in the justice system.     

Safe or sorry? Rights,responsibilities and retribution—the new three Rs of education in New Zealand?

A school is a microcosm of society and thus is subject to the problems existing within society generally. The rights and responsibilities of persons outside the school gates apply within the school also. The school environment is unique in that not only is a young person compelled to attend but he or she must spend a great deal of each day within the school's jurisdiction. May it then be argued that there is an enhanced responsibility of schools towards the emotional and physical welfare of their students in relation to matters within their control? This article will examine whether a New Zealand public school has a responsibility that extends further than a moral duty for the safety of its students. Particularly it will consider a school's potential liability in respect of the various forms of student‐to‐student bullying and harassment. It examines the potential for an action against a school under human rights legislation, at common law, and in criminal law.     

WOMEN, CRIME, AND DEPENDENCY An Application of the Theory of Law

This article seeks to show how economic dependency, a characteristic which is particularly representative of a woman's location in social life, is related to the outcome of criminal prosecution. A stratified random sample of 1034 cases of women offenders was drawn from the files of on Adult Probation Deportment in northern California. Based on multiple regression analysis, the findings give tentative support to the expectation that sentencing disparities within offense categories can be predicted from the degree to which a woman is economically dependent upon someone else for her day-to-day existence: the more dependent she is. the less severe her disposition.     

Symbol and Substance: Effects of California's Three Strikes Law on Felony Sentencing

California's “three strikes and you're out” law is the most notorious example of the wave of mandatory sentencing policies that many states enacted beginning in the late 1970s. While advocates and critics predicted the law would have profound effects on aggregate punishment trends and individual case outcomes, Feeley and Kamin's analysis of previous sentencing reforms suggested the law's impact would be mainly symbolic because local officials would ignore, subvert, or nullify its major provisions. While aggregate analyses have tended to confirm this argument, so far there has been no systematic test of the law's effect on individual cases. This analysis uses multilevel models applied to case‐level data from 12 urban California counties to test hypotheses about shifts in average punitiveness, the relative influence of legal and extralegal factors on sentencing, and the uncertainty of sentencing outcomes. Results mostly support Feeley and Kamin's symbolic interpretation, but also reveal important substantive impacts: since Three Strikes, sentences have become harsher, particularly in politically conservative counties, and black felons receive longer prison sentences.     

Computers in criminal justice — Realising the potential: Part II: The future

A number of trends are apparent from the current development of existing Criminal Justice computer systems (CJS). Apart from in probation, the first systems in each criminal justice agency in this country have been designed to assist with routine clerical and administrative tasks — book-keeping in the magistrates' courts, wordprocessing and finance in prisons, etc, which although effective at easing the clerical and administrative tasks have made little overall impact on the operation of criminal justice. They have not, for example, reduced the delays in the criminal justice process, or reduced the overcrowding in prisons. This is in contrast to the US, where computerisation in some courts, for example, has significantly reduced delay and has helped with the operation of sentencing guidelines to bring about a great consistency of sentencing. In Part II of his article A D Maclean looks at what the future holds as far as computers in criminal justice and concerned.     

Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system's commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts. We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures. Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000–02, along with aggregate data on federal district court caseload features. We find that meaningful trial penalties exist after accounting for Guidelines‐based rationales for differentially sentencing those convicted by guilty plea versus trial. Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties. In addition, trial penalties are lower for those with more substantial criminal histories, and black men. Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.     

THE SOCIAL CONTEXT OF GUIDELINES CIRCUMVENTION: THE CASE OF FEDERAL DISTRICT COURTS*

Recent scholarship on criminal punishments increasingly highlights the importance of courtroom social contexts. Combining recent data from the U.S. Sentencing Commission (FY1997–2000) with aggregate data on federal districts, the current study examines interdistrict variations in the application of downward departures from the federal sentencing guidelines. Findings indicate that substantial variation exists in the probability of both prosecutor‐initiated substantial assistance departures and judge‐initiated downward departures. This variation is accounted for, in part, by organizational court contexts, such as caseload pressures, and by environmental considerations, such as the racial composition of the district. Additional evidence suggests that individual trial penalties and race disparities are conditioned by aggregate court contexts. Drawing on interviews with federal justice personnel, this article concludes with a discussion of future directions for research on federal guidelines departures. Part of the glory of the federal system…is that you've got this one big organization, but it can be molded to different needs…
‐ An assistant U.S. attorney ‐