确立中国式辩诉交易程序之研讨

随着社会、经济的发展,犯罪率不断上升,刑事案件越来越多。由于各种条件的限制,导致了刑事积案与日俱增。为了及时处理积案和集中力量查处大案,美、德、意等国家的法律规定了辩诉交易程序。我们应从中国国情出发,本着“洋为中用”原则,对国外辩诉交易的发展、辩诉交易与简易程序的关系进行研究,确立中国式辩诉交易程序。     

Plea bargaining with budgetary constraints

In this paper, we construct a simple model that illustrates a perverse effect associated with plea bargaining in which an increase in sanctions can lead to reduced deterrence. This finding is derived from the interaction of binding budgetary constraints and plea bargaining. In an environment with these institutional features, higher sanctions are not always optimal when resources are limited, even if such sanctions are costless. Such potential phenomena may be useful in explaining the fact that many states have introduced limitations on plea bargaining. Prosecutors being concerned with their conviction rates is necessary for such a result to be present.     

The use of simulation in criminal justice policy evaluation

The criminal justice system is administered at the local level by many independent agencies and departments, often without regard to each other's objectives and often at the expense of overall effectiveness. This study has attempted to relate the primary system goal of crime control to a set of policy alternatives distributed over each criminal justice sector. Specifically, a simulation model based on the techniques of “industrial dynamics” was developed to evaluate combinations of the following policies: speedy trial, no plea bargaining, and restricted bail. Data obtained from the District of Columbia's criminal justice agencies were used to validate the model. The results of the analysis indicate that the system is basically insensitive to small perturbations, but is susceptible to disruption from large changes in input and procedure. Under the given set of assumptions, continuation of current practices will lead to a gradual deterioration in performance that can only be stemmed by large expenditures on manpower and facilities.     

Capacity as Philosophy: A Review of Richard Lippke’s, The Ethics of Plea Bargaining

Plea bargaining is a response to capacity overload in the criminal justice system. It both preserves and belies the right to trial, making possible its glorious display but only by denying it in most cases. While plea bargaining has been documented and analysed copiously in historical, sociological and legal terms, its ethical status as an institutional practice are hazy. Richard Lippke offers an account of plea bargaining that draws on the normative debates over responsibility, culpability and desert, in aid of a holistic proposal for a morally defensible system of pre-trial adjudication. In proposing an ethical system of plea bargaining, and working through the normative challenges to this, two bigger questions become visible. These are: what are the implications of developing, in essence, an ethics of efficiency, and, how should the criminal justice system be held to account for the inequalities (and iniquities) that exist before and outside it? In this review essay, I show how these questions are constructed in the book and make some attempt at analysing them, thus engaging with the more urgent and general issue of the complicated relationship of the ideal to the real when it comes to penal practice.     

浅析刑事和解理念对辩诉交易制度的启示——以被害人为视角

辩诉交易制度与刑事和解制度是欧美刑事案件中适用的两类重要的司法制度。两种制度有其相似的地方,也有诸多的不同。其中一点便是刑事诉讼的被害人在两种制度中的地位和作用有着较大的差别。而两者的共同基础———社会契约理论和私法中契约自由的观念,以及辩诉交易制度在实际运作过程中可能出现的问题使得辩诉交易借鉴刑事和解的理念,加强被害人的地位和作用成为可能和必要。     

德国辩诉交易的实践与启示

在德国,辩诉交易制度完全是实践中自发的产物。德国辩诉交易实践的形态、产生、争论及相关司法判决和改革草案的分析表明,辩诉交易已经成为德国解决刑事案件的方式之一,这种方式的出现回应了德国刑事诉讼的特点及其面临的困境,同时也缩小了两大诉讼模式的差距,呈现了世界范围内体系差异而解决方式一致的诉讼规律。德国辩诉交易实践表明,在我国建立基于被告人认罪而迅速结案继而获得刑罚减轻的结案方式成为可能。     

Abolition of plea bargaining in the coast guard

In the administration of criminal justice, the abolition or restriction of plea bargaining has raised many issues. Of primary concern is the impact on court systems and case dispositions. This research note looks at the Coast Guard military justice system and its 1975 decision to abolish pretrial agreements, effectively eliminating plea bargaining in that system. Studying criminal cases from 1973 to 1978, we determine if that intervention in a time series exhibits any potency. Specifically, what difference did the abolition of plea bargaining make? We find that the abolition of plea bargaining did not make much of a difference to the Coast Guard military justice system, similar to the conclusions drawn from studies of civilian courts.     

Crime Reduction and the Length of Prison Sentences

The issue discussed is whether policies of imposing increasingly lengthy prison sentences on serious criminal offenders reduce crime. The empirical evidence for the deterrence and incapacitation effects of incarceration is first examined and found to be of limited help in answering the question whether lengthy prison sentences reduce crime. Conceptual and normative analysis of deterrence and incapacitation suggest that we have little reason to believe that the general use of lengthy prison terms produces more good than harm for society, especially if the burdens of and alternatives to such prison terms are taken into account.     

Am I my brother's (or customer's or tenant's) keeper? Economic and ethical aspects to the California Supreme Court's struggle with the issue of landowner's standard of care.

The Supreme Court of California has ruled on several cases involving the question of to what extent a possessor of land is liable for the harm to customers or tenants occurring when a third party commits a criminal act against the customers or tenants present on the land. This paper reviews the historical development of this aspect of negligence law and analyzes the ethical and economic efficiency implications of ascribing legal responsibility for such crimes to: a) local government, b) the possessor of land, c) the customer, and d) the criminal. For example, is there an effort by the judicial system to substitute deterrence from criminal acts provided by possessors of land (i.e., specific deterrence) for the general deterrence traditionally provided through the use of police powers by local government? Analysis indicates that specific deterrence may be more effective in changing the location of criminal acts than in reducing the level of criminal activities. Also, the expense of complying with the legal responsibilities of protecting customers and clients may be especially high in high-crime, low-income areas, thus forcing commercial establishments to move or go out of business. Thus, we have a troubling tradeoff: compensating individual crime victims in a high-crime area could ultimately deprive the residents of basic economic opportunities.     

Incentives, criminal defence lawyers and plea bargaining

Plea bargaining has become a central feature of criminal procedure in Anglo-Saxon jurisdictions. This paper explores an area seldom discussed in the economic literature on plea bargaining: the influence of the defence lawyer's fee contract on the terms of the bargain. In particular, it uses data from one jurisdiction of the impact on case trajectories of changes in publicly funded defence lawyers’ contracts to test the proposition that the nature of the lawyer's contract influences how cases are managed. An event study methodology on a pooled time-series cross-section data set of case trajectories before and after the change in the nature of the contract is used to examine whether the new payment regime significantly changed the trajectories of cases through the summary criminal justice system. Overall the results seem to suggest that the behaviour of defence lawyers may be influenced by financial incentives. This implies that the terms of plea bargains reached between prosecution and defence lawyers may be affected by the defence lawyer's remuneration contract. Consequently, the authors conclude that the role of defence lawyers has been under-researched in the literature on the economics of plea bargaining.     

Does more crime mean fewer jobs and less economic growth?

This paper employs an Autoregressive Distributed Lags approach to investigate how a set of economic variables and a deterrence variable affect criminal activity. Furthermore, it highlights the extent to which crime is detrimental to economic activity. The case study is Italy for the time span 1970 up to 2004. A Granger causality test is implemented to establish temporal interrelationships. The empirical evidence shows that the lack of deterrence positively affects each type of crime and especially thefts. All crime typologies have a negative effect on legal economic activity, reducing the employment rate. Furthermore, homicides, robbery, extortion and kidnapping have a crowding-out effect on economic growth.     

Plea bargaining: Its pervasiveness on the judicial system

The proposed standards of the American Bar Association and the National Advisory Commission on Criminal Justice Standards and Goals are expressed in an ideal perspective, compared with the reality of plea bargaining use by prosecutors. Fifty-five prosecutors were randomly selected from four countries in two states, and a standardized questionnaire was administered to the subjects. The majority of the sample indicated an essential need for plea bargaining to administratively ensure justice in the criminal courts. The American Bar Association maintains that administrative efficaciousness is a minute consideration in justifying plea bargaining as a legal institution. Standards proposed by the federal Task Force on Courts contend that plea bargaining is an unnecessary adjunct to the formal legal process. Either of the proposed standards would, if adopted, definitely activate participant roles in a formally operated legal environment.     

Toward a Comparative Economics of Plea Bargaining

We attempt to open a path to the comparative analysis of criminal procedure by superimposing the efficiency principle onto an adversarial system characterized by an aversion to false convictions and an inquisitorial system characterized by a desire to justly punish the guilty. We begin with a general model of plea bargaining, embed it in a larger framework that addresses the costs of adjudication, the value of punishing the guilty and the costs of false convictions, and then link the desirability of plea bargaining and compulsory prosecution to the weights given these costs and benefits in the objective function. We examine the judicial endorsement of plea bargaining in the United States and the debate over European analogs to plea bargaining in light of the model, and conclude that plea bargaining will increase social welfare in adversarial systems but not in inquisitorial ones.     

The Courts in a Fragmented Criminal Justice System

The U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson in 1967 outlined a central role for courts in the criminal justice system. That role, however, has been somewhat diminished by the dominance of plea bargaining and the legislative enactment of mandatory minimum sentences that limit judges’ discretion. At the same time, judges have become more involved in specialized courts dealing in cases involving drugs and mental illness. A major topic of concern is the lower courts, which in many areas have changed little since the 1960s Commission. In those places, the traditional adversary process is not operating well, with many defendants pleading guilty unnecessarily in a system that may be designed primarily to collect fees. In violent crime cases, the imposition of capital punishment remains a controversial issue for states that is not likely to be resolved by a new national commission. The central court functions of sentencing and overseeing plea bargains are discussed elsewhere in this volume.     

The Impropriety of Plea Agreements: A Tale of Two Counties

In this article, the author, a former prosecutor and a former assistant public defender, draws on his five and a half years of experience as a "professional plea bargainer" to explore the many subtleties of a practice that he suggests leads to work avoidance, misplaced loyalties, coercion, and other negative characteristics on the part of courthouse regulars, and to injustice for those criminal defendants who do not wish to plead guilty. He suggests that criminal courts have become overly dependent on plea bargaining, which is used much more extensively than is either necessary or appropriate.     

解读美国辩诉交易制度

辩诉交易虽源于英国 ,但却在美国发扬光大 ,成为美国刑事司法最具特色的制度之一。只有比较全面准确地了解辩诉交易制度的来龙去脉、实施情况、存在的问题以及对辩诉交易的各种评价之后 ,才能根据我国的法制环境进一步研究是否引入 ,如何引入的问题。     

NEGOTIATION AND PLEA BARGAINING MODELS: An Organizational Perspective

This article assesses the contributions to our understanding of plea bargaining made by economic and decision-theory models of criminal justice decision-making. The author introduces an organizational interpretation of plea bargaining and critiques two of the more prominent attempts at formal modeling of the criminal process. Empirical evidence, gathered by others, is reanalyzed to compare the relative explanatory power of these formal models in determining patterns of choice among negotiative and adversary dispositions in two urban felony jurisdictions. The article concludes with the assertion that economic and decision-theory models present an insightful but essentially distorted view of criminal justice decision-making. An appreciation for contextual factors, emphasized in organization theory, is necessary for grasping the reality of the criminal process and for shaping meaningful reform.     

A historical sketch of plea bargaining

Plea bargaining is one of the most emotional and controversial topics in the field of criminal justice. Not only is it defined and documented poorly, its origins also are much disputed. Pro-plea bargainers like to trace plea bargaining to Cain and Abel's classic struggle. Anti-plea bargainers cite the post-American Civil War era as the beginning point for plea negotiation. The truth lies somewhere in between. This paper investigates primary and secondary sources from the fifteenth through the eighteenth centuries in an effort to pin down the specific initiation of plea bargaining and its antecedents. This work demonstrates that prejudice has distorted the study of plea bargaining's origin and encourages further research in this area.     

Plea Bargainings: Ethics and Politics

This article argues for a re-orientation of the debates concerning plea bargaining in the light of a process of re-legitimation currently under way in which professional codes of ethics are given new importance. In the new rhetoric, plea bargaining is claimed to be in line with rather than contrary to traditional adversarial principles. The focus of this paper is to argue for a re-affirmation of deep-seated principles which contextualize professional ethics in the wider domain of the politics of criminal justice.     

Texas Criminal Defense Attorneys’ Perceptions of Crime Victim Involvement in Criminal Prosecutions

The purpose of this study was to test the utility of the Victim Satisfaction Model of the criminal justice system by quantitatively assessing criminal defense attorneys’ perceptions of victims’ involvement in the charging and plea bargaining stages of the criminal process. A cross-section research design was used in this study. Self-administered questionnaires were mailed to defense attorneys who regularly practice criminal law in Texas. The results of this study support the utility of the Victim Satisfaction Model of the criminal justice system and further our understanding of victim involvement in the decision making and have important implications for the American criminal justice system.