SENTENCING IN CONTEXT: A MULTILEVEL ANALYSIS

Criminal sentencing is, along with arresting and prosecuting, among the most important of formal social control decisions. In this study we use hierarchical modeling to test hypotheses about contextual level influences and cross level interaction effects on local court decisions. Most of the explanatory "action," our analysis shows, is at the individual case level in criminal sentencing. We also find evidence that local contextual features–such as court organizational culture, court caseload pressure, and racial and ethnic composition–affect sentencing outcomes, either directly or in interaction with individual factors. We conclude by discussing theoretical implications of our findings, and how our study points out some dilemmas among civil rights, local autonomy and organizational realities of criminal courts.     

“Juvenile Drug Courts and Recidivism: Results from a Multisite Outcome Study”

This study reports findings from a study of nine juvenile drug courts (JDCs) from across the US. A quasi-experimental design, with one-to-one matching on possible confounders and sociodemographics, was used for the outcome assessment (n?=?1372). Baseline and outcome data were drawn from justice system records. Although there is variation across sites and, to some extent, outcomes, these JDCs were generally ineffective in reducing recidivism. Similar findings have emerged in other recent studies of JDCs. Given the results of this study and others, it is essential that juvenile courts work to improve the effectiveness of JDCs by increasing adherence to known principles of effective intervention.     

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

Empathy and objectivity in the legal procedure: the case of Swedish prosecutors

The role of empathy, the capacity to read someone else’s emotions, in the legal context has previously been studied in relation to primarily judges’ decision-making, often with a concern for objectivity. Our purpose is to study professional emotion management in the legal process through an analysis of Swedish prosecutors’ use of empathy. An ethnographic data collection took place between 2012 and 2015, including shadowing, observations and interviews with 36 prosecutors from 3 prosecution offices. The analysis shows that during the investigation, empathy helps identify the prerequisites of a crime and deciding if and how to prosecute. When preparing for trial, empathy is used to anticipate the situation in court. During the trial, the empathic process includes management of the emotions of others in order to stage credible testimonies, convince the judge and calm victims. The empathic process is oriented and restricted by the emotive–cognitive judicial frame through which prosecutors are rewarded by emotions of comfort and pride in demonstrating expertise of legal coding. We conclude that empathy is integral to prosecutors’ professional performance, including the requirement to be objective. The study points to the problems with silencing emotions and maintaining a positivist notion of objectivity in the legal system.     

从美国法院典型判例看商业方法的可专利性

＂商业方法＂是指人们通过计算机辅助来实施经营、管理或者适用于财经信息处理流程的技术方法。关于究竟应当依据何种标准来判定此等商业方法是否可以获得专利权,这是一个争议性问题。围绕该等争议的主要方面,从早期到后来以及最近对若干典型案例的审理,美国法院先后提出了＂商业方法专利除外＂原则、＂实用、具体、有形结果＂标准以及＂机器或转换＂标准等一系列判决法理,其中,后来的判决法理是对先前法理的否定与发展。随着电子商务产业的快速发展,关于商业方法可专利性问题,未来不管采用何种标准,均应在立法上作出明确规定,并从严掌握,以免造成压抑科技创新或者专利权人的垄断。     

中国“例制”构建中的法院角色和法官作用

我国案例指导制度中的法院角色和法官作用有着鲜明的特色,案件审理阶段法院和办案法官往往并没有参与案例指导的意识,而是在案件裁判后由审判庭之外的综合部门通过遴选的方式确定典型案例,经编辑后报审判委员会研究讨论,再逐级报最高人民法院确定并发布。指导性案例的产生不是按照管辖制度自然地"涌现",而是被人为地"发现",这一点明显不同于国外的做法。相比较,"涌现"方式符合司法经济原则和司法规律,而"发现"方式充满人为因素,成本高而效率相对较低。案例指导制度不应被管辖制度"牵着鼻子走",而应当通过变更管辖制度,与司法规律相适应。     

US Women Federal Court Judges Appointed by President Carter

There is considerable disagreement as to whether any gender differences on the bench are symbolic, substantive, or both. This paper, based on never-before published surveys and personal interviews conducted in the early 1980s, contributes to that discussion by describing what women appointed to the federal bench by President Carter between 1976 and 1980 had to say about gender differences in their first years in office. I conclude that these early experiences and comments by women on the bench are still relevant today and presage much of the research on judicial gender which has followed.

Authoritarian constitutionalism in Putin's Russia: A pragmatic constitutional court in a dual state

This article analyzes the successful adaptation of the Russian Constitutional Court (RCC) to an increasingly authoritarian regime under President Vladimir Putin. It argues that the key to its success lay in its pragmatic approach, whereby the Court decides cases that matter to the regime in a politically expedient way, while giving priority to legal and constitutional considerations in other cases, thereby recognizing the reality of a dual state. Over the years the RCC has taken a pragmatic approach in its reaction to changes in the rules of its operations, in its personnel, and in the policies of the popular political leader, including reducing the country's subordination of European legal norms. In so doing, the Court and its skillful chairman Valerii Zorkin achieved considerable autonomy in pursuing its own legal vision on many issues and even improved the implementation of its decisions by other judges and political bodies alike (previously a big problem). In short, the RCC developed its own version of “authoritarian constitutionalism”, which may serve as a model for constitutional judicial bodies in other authoritarian states.     

Judicial alignment and criminal justice: evidence from Russian courts

This paper investigates the effect of informal ties between judges (as represented by regional court chairpersons) and prosecutors on the repressive implementation of criminal justice in Russia in the area of fraud convictions. The authors utilize criminal law statistics of Russian regional courts for 2006–2010 to determine the alignment between chairpersons and prosecutors by measuring the length of their mutual career paths. The informal ties have a strong impact on trial outcome, which, however, changes over time. During periods of high bureaucratic risks and uncertainty, regions with a higher extent of informal ties between judges and prosecutors exhibit more repressive law enforcement. If external risks decrease, informal coalitions seem to increase the independence of the courts, insulating them from bureaucratic pressures and limiting their repressiveness.     

General courts,specialized courts,and the complementarity effect

Among the major decisions any legal system must make is deciding whether to establish general courts with broad jurisdiction, or specialized courts with limited jurisdiction. Under one influential argument—advanced by both judges and legal theorists—general courts foster coherence within the legal system. This Article identifies a distinct effect of establishing general courts: the “complementarity effect.” In the case of complementarity, general courts strategically apply different principles in different fields, such that litigants losing in one sphere (e.g., public law) are compensated in another (e.g., private law). We support this conjecture by analyzing three case studies.