但书、罪量与扒窃入罪

刑法修正案八生效以来,扒窃应否一律入罪、但书是否得为扒窃的出罪依据之争,困扰着我国刑法理论研究与司法实务。解决这一问题的理论前提是,建立对但书及其规制下的罪量类型、政策机能、体系定位、出罪机制的基本共识,消除刑法知识转型时代不同话语系统囿于语境差异的对话困难。通过以阶层犯罪论体系与我国刑法规定为背景,立足于刑法教义学与刑事政策的融通,分析我国刑法特有的罪量要素的类型与政策功能,可以认为,扒窃包含为但书所规制并须结合刑法的规范保护目的进行涵摄的罪量要素。从扒窃行为的客观不法与“扒手”的人的主观不法两个维度,才能揭示扒窃的规范含义,并据以依次判断扒窃行为是否该当扒窃型盗窃罪的构成要件。扒窃作为盗窃罪的不法行为定型,既表明我国刑法包含涵摄罪量要素,也展现了我国刑法以行为不法为基础,重视人的不法的新动向。     

犯罪论对刑法典的形塑作用——以德国犯罪论与刑法典的关系史为线索的考察

刑法典与犯罪论体系的关系是犯罪论体系论争的一个前提性问题。对此,主张"维持论"的学者提出了"刑法典对犯罪论具有制约关系"的命题。通过对德国犯罪论与刑法典关系史的考察,可以看出,无论是构成要件、违法性还是罪责,都不是德国刑法典的产物,而是德国刑法学者智慧的产物。更为重要的是,阶层犯罪论体系的这些基本概念,通过在刑法学界形成共识之后,形塑了德国刑法典的发展。我国犯罪论体系的建构不应拘泥于刑法典本身的规定,因此引入德国阶层犯罪论体系并不存在障碍。     

历史·范式·结构:犯罪学中的风险开示

在20世纪末,风险已成为占据主要支配力的问题处理方式。对于犯罪学来说,关于风险的争论已经贯穿在研究的全部范畴内。犯罪学中的风险理论经历了从隐性到显性的知识发展。在犯罪控制范式转变中,风险的规制、维控与治理与犯罪的预防、控制与治理分别对应而形成了以回抗、维控、化解风险压力为导向的控制结构。同时,作为犯罪控制结构要素的控制主体、控制措施与控制客体的任一环节的自反性都将使犯罪控制的运行超出设计初衷而出现风险性。犯罪学中的风险理论是犯罪学与风险学科的交叉研究理论,也存在由于风险的不确定性在犯罪治理中的适用所引发的一系列争议性问题。由此,风险议题在解决我国司法实践难题时显得尤为重要。     

知识背景、三维解构与智识启迪:贝卡里亚犯罪学思想论要

从刑事一体化的角度来看,贝卡里亚及其《论犯罪与刑罚》一书,不仅是刑法学界的遗产,也是犯罪学的一笔丰厚遗产。贝卡里亚的犯罪学理论是建立在对前启蒙时代犯罪学的批判之上的,通过与前启蒙时代犯罪学的比较,可以发掘贝卡里亚对犯罪学理论的巨大贡献。系统整理贝卡里亚及其犯罪学思想,不仅是犯罪学对于学界的一种理论贡献,更是对于深度融合刑事法学各个学科,具有不可低估的学术意义。     

Examining state and state-corporate crime surrounding major sporting events

Although prior criminological research has examined sport, most of the attention has been focused on crimes perpetrated by athletes or by fans. Potential examples of state and state-corporate crime as they relate to the bidding process, hosting, and legacy of sport mega-events is the current focus. Drawing on sport and criminology scholarship, the study focuses on Olympic Games and World Cups since the late 1990s, discussing the issues of selection of host sites, police abuse, under-enforcement of street crimes, limitations on civil liberties, removal of ‘undesirables,’ and labor-related concerns.     

Effects of Mug Book Size and Computerized Pruning on the Usefulness of Dynamic Mug Book Procedures

Abstract

A recurrent problem for the legal system is persons claiming memory loss in relation to crime events of which they are suspected. In the present study, individuals were tested as perpetrators having first read a story about “themselves” stabbing another man to death. Participants' memory of the story was tested at three sessions (30 minutes, one week and three weeks later). The genuine memory of one group was tested at all three sessions, whilst a second group simulated memory impairments at the first session and a third group simulated memory impairments at the first two sessions. At the third test session, all three groups were tested on what they actually remembered. Results showed a decrease in memory after simulation of impaired memory, as compared with the controls, but repeated simulation did not seem to be of importance for free recall and recognition. It is suggested that people have specific ideas and conceptions about how memory and forgetting work, ideas that might be used when simulating memory impairments in order to deny guilt. Although one should be cautious when generalizing the findings to real life events, the results are considered to be of relevance within both the legal- and the memory theoretical frameworks.     

Differentiating sexual violence: A comparison of sexual homicide and rape

Abstract

The present study sought to identify consistent patterns in the actions of sexually violent offenders to determine whether sexual homicide and rape reflect different behavioral emphasis of a single thematic model of sexual assault. Crime scene behaviors of 74 (37 sexual homicides and 37 rapes) solved cases of sexual assaults were compared, and results of a multi-dimensional analysis revealed three thematic styles of interacting with the victim during a sexual assault (Exploit, Control, and Violent). Further analysis indicated that offender–victim interactions in sexual homicide and rape are predominantly distinguished by the degree of violence, such that behaviors associated with each type of offense were found to occur in two discrete areas along a single continuum. Findings are discussed in terms of producing a general framework for understanding sexual violent interactions.     

The maharishi effect: A model for social improvement. Time series analysis of a phase transition to reduced crime in merseyside metropolitan area

Abstract

Time series analysis was used to test the hypothesis that Merseyside crime rate was reduced by a group practising Maharishi Mahesh Yogi's Transcendental Meditation and TM-Sidhi programme. Previous research suggests that a phase transition to increased orderliness u evidenced by reduced crime rate should occur when the group size approaches the square root of 1% of the total population. Analysis of Merseyside monthly crime data and coherence group size from 1978 to 1991 shows that a phase transition occurred during March 1988 with a 13.4% drop in crime when the group size first exceeded the √1 % or Maharishi Effect threshold (p < 0.00006). Up to 1992, Merseyside crime rate has remained steady in contrast to the national crime rate which has increased by 45%. In 1987 Merseyside had the third highest rime rate of the eleven largest Metropolitan Areas in England and Wales; by 1992 it had the lowest crime rate. 40% below levels predicted by the previous behaviour of the series. There were 255,000 less crimes in Merseyside from 1988 to 1992 than would have been expected had Merseyside continued to follow the national crime trend. Home Office figures indicate savings to Merseyside could exceed £1250 million for the five year period. Demographic changes, economic variables, police practice, and other factors could not account for the changes.     

Is overpunishment fairer than underpunishment? Perceptions of deviations from equity

Abstract

Three studies are presented which test hypotheses derived from Equity Theory, Prospect Theory and the principle of Diminishing Marginal Value with regard to preferences for overpunishment and underpunishment in the assignment of penalties to offences of varying severity. The first two studies showed that, with different subject samples, offences, and kinds of punishments, subjects indicated a marked preference for over-punishment rather than underpunishment, when both over punishment and under-punishment deviated from ideal, or equitable, punishment to the same degree. However, the effect was only apparent for serious offences. A third study showed that the overpunishment preference for a serious offence existed even when the overpunishment deviated 30% more from ideal punishment than underpunishment, but again no preference was shown' for the less serious offence. As the results cannot be readily explained in terms of any of the three explanatory principles, a possible explanation in terms of concept of negative reciprocity is advanced.     

Are the misinformed more punitive? Beliefs and misconceptions in forensic psychology

Misconceptions about psycho-legal issues are widespread and threaten the fabric of our legal system. The present study examines how misconception endorsement is related to tough-on-crime beliefs and sentencing decisions. Two hundred and fifty-six students completed a 50-item questionnaire assessing misconceptions related to forensic psychology and determined sentences in four mock-jury scenarios at the beginning and end of an introductory forensic psychology course. Misconception endorsement decreased significantly from 32% to 21%, with every subscale (police and interrogations, service provision, mental illness, memory and cognition, tough on crime) experiencing a significant decrease from pre-test to post-test. This drop in endorsement is meaningful, as misconceptions and beliefs are typically very difficult to change. Additionally, misconception endorsement was positively correlated with tough-on-crime beliefs and punitive (mock) sentencing. This study provides a valuable resource for endorsement rates of psycho-legal misconceptions and the propensity of individual misconceptions to change. It also makes a strong argument for the usefulness of psychology and law courses in reducing potentially harmful misconceptions and tough-on-crime beliefs.