Prison sentences: last resort or the default sanction?

ABSTRACT

This paper discusses the sentencing purposes for penal penalties, judges’ perceptions of sentencing purposes and prison sentences, and the effects of penal sanctions. We examine judges’ positions towards different penalties, with a focus on imprisonment, since their views on the different penalties are related to their sentencing decision-making. Understanding these views is then critical for several practical and political purposes, including bridging the gap between academic discourse and legal practice. We accessed judges’ views on penal sanctions through a questionnaire and an interview. Our sample is compounded by the judges of the criminal courts from the three major cities in Portugal. Despite the most recent criminological empirical knowledge, judges valued imprisonment as the most adequate sentence, both for different crimes and for different judicial purposes. This result is not consistent with viewing imprisonment as a ‘last resort’ solution. Indeed, we did not find this ‘last resort’ position in our data, and it is not apparent in the judicial statistics on imprisonment rates. Our data highlight the importance of increasing judges’ training on criminological and sociological issues as well as the importance of changing the influence of their personal beliefs regarding penal sanctions into research-based positions.     

EU's Fight Against Terrorist Finances: Internal Shortcomings and Unsuitable External Models

This article offers an analysis of the European Union's (EU) efforts in the fight against terrorist finances. Following the 9/11 attacks, the EU has adopted the relevant United Nations counterterrorism resolutions as well as the special recommendations of Financial Action Task Force. In addition, the EU has developed its own measures spanning across all of its three pillars. There is, however, a cause for concern that some of these measures have not been properly implemented, while others have been criticized on legal, transparency, legitimacy, and efficiency grounds. These shortcomings are not only due to EU's own internal obstacles, but also result from the EU's uncritical adoption of the prevailing smart sanctions and money-laundering regimes, which are based on a number of unwarranted assumptions that do not reflect the nature of contemporary terrorist threats in Europe.     

Democratic sanctions meet black knight support: revisiting the Belarusian case

Democracy promotion through economic sanctions has become commonplace. Previous studies argue that an important challenge to the effectiveness of democratic sanctions is the contravening support of black knights. However, these studies underestimate conflicting interests between the target and its black knight. In this paper, I propose a bargaining model for understanding how targets obtain support from black knights. The target’s main source of bargaining power is its threat to defect from the black knight and obtain support from an international rival. However, the credibility of this threat decreases with democratic sanctions because they hinder cooperation with a likely source of support, namely the sender. Therefore, targets take steps towards democracy to improve their bargaining position relative to the black knight. To probe my argument, I conduct a deep single case study of EU sanctions against Belarus between 2004 and 2016 with Russia as a black knight. Sanctions should have no effect in this paradigmatic case of black knight support. Yet, there is substantial evidence that democratic sanctions have increased the cost of electoral fraud and state repression in Belarus. This indicates that the conflicting interests of targets and their black knights provide windows of opportunity for democracy promotion.     

中国国库最优现金余额的测算与评价——基于Baumol模型扩展的理论分析与实证研究

近年来我国国库现金余额急剧上升,出现了两难并存的局面--高额国库现金闲置的巨大时间价值损失和国库现金波动对央行货币政策造成显著影响.国库最优现金余额的准确测算是解决这些问题的前提和基础.对此,从理论上扩展Baumol总量现金管理模型,构建了国库最优现金余额模型.研究发现,国库最优现金余额与政府年度财政支出、市场年度收益率、年度借款成本、债券与现金的转换成本等变量之间具有平方根关系.运用我国政府国库现金和相关指标进行实证分析,得出我国国库最优现金余额在831.59亿元～910.51亿元之间;并以此为标准评价近年来我国国库现金状况.研究发现近年来我国政府存在近万亿的闲置国库现金,测算表明闲置国库现金的时间价值损失平均每年在100亿元以上.高额闲置国库现金从一个侧面反映了我国国库财务管理的低效率,迫切需要提高政府财务效率水平.     

Civil and criminal sanctions against blackmail: an economic analysis

The rationale behind the legal prohibition of blackmail and its effects have worried lawyers, economists and philosophers. The paper tries to offer a new perspective on the issue by introducing a simple game-theoretic model of the blackmail interaction under three alternative legal regimes: blackmail as a legally enforceable contract, blackmail as a voidable contract, and criminal blackmail. We show that the first two are substantially equivalent, and are unable to prevent a successful blackmail equilibrium outcome. Making blackmail a crime can instead alter this result for some parameters of the model.We also explore the justification for criminalizing blackmail and find it, in line with previous Law and Economics literature on blackmail (Ginsburg and Shechtman (1993), Coase (1988)), in the correction (albeit incomplete) of misaligned incentives to acquire information and the revelation and no revelation outcomes involved in the blackmail transaction. This justification could be undermined by the advantages of what seems to be a superior legal regime in terms of efficiency: no legal regulation of blackmail. This hands-off system can also destabilize, in a one-shot interaction, the successful blackmail outcome. In plausible dynamic interactions, however, it fails to do so and, in fact, its effects actually resemble those of blackmail as an enforceable contract. This result might explain why most legal systems stick to the criminalization of blackmail.     

Some Remarks on Implementation of Community Sanctions and Measures

We must acknowledge, of course, that custody must be available as the ultimate sanction for criminal offending, but it must be an option of last resort. At last, not at least, there must be a realisation of the enormous cost - in economic and particularly in human terms. Therefore, the basic question is: What is the cheapest and at the same time the most effective way of punishment, bearing in mind the failure of strong repressive measures and only a partial success of depenalisation and decriminalisation? The community sanctions and measures seem to be the best solution and they can, to a certain extent, meet the expectation put into them. I am not going to describe the individual alternatives or the way of their implementation in Western Europe or North America. I would like to concentrate on some problems related to their introduction, which are faced in post-totalitarian societies.     

小额诉讼程序适用的改进逻辑

小额诉讼程序的适用比例至今偏低,致使程序的建构意图没能得到实现。从程序运行者、程序利用者和程序运行之监督者的视角剖析成因,有助于探寻到小额诉讼程序依法适用的促进策略。简案若不能有效识别,小额诉讼程序的强制适用将失去起码保障,未来识别简案当采取智能识别为主、人工识别为辅的方式。消解适用合意的稀缺性,可使小额诉讼程序的实际适用率因为合意适用条件的放宽而得到提高,获得适用合意的方法包括事先约定、法院引导达成和事后自行达成。为规制法人或非法人组织对小额诉讼程序的过多利用,援引诚实信用原则对其进行费用制裁更为现实可行。推动小额诉讼程序实现独立、提高首次送达成功率以减少程序转化和重视审级监督的驱动,是促进小额诉讼程序依法适用的重要策略。     

THE POWER OF DIVERSION: INTERMEDIATE SANCTIONS AND SENTENCING DISPARITY UNDER PRESUMPTIVE GUIDELINES*

Fiscal constraints and shifting political climates in corrections have recently led to a renewed interest in intermediate punishments. Despite their growing prevalence, though, relatively little empirical research has examined the judicial use of alternative sanctions as a sentencing option. By using 3 years of data from the Pennsylvania Commission on Sentencing (PCS), this study investigates little‐researched questions regarding the use of sentencing alternatives among offenders and across contexts. Results indicate that male and minority offenders are the least likely to receive intermediate sanctions, both as a diversionary jail or prison sentence and as a substitute for probation. The probability of receiving an intermediate sanction also varies significantly across judges and court contexts and is related to county‐level funding for these programs, among other factors. Findings are discussed as they relate to contemporary theoretical perspectives on the perceived suitability of intermediate punishments and on the unique role that offender agency plays in the sentencing of these cases. Directions for future research are discussed.     

Deserved Delayed Release? The Communicative Theory of Punishment and Indeterminate Prison Sentences

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences.     

Sanctions,Perceived Anger,and Criminal Offending

In articulating models of offender decision-making, researchers have tended to focus on either deterrence/rational choice or situational/emotional considerations. In this paper, we merge these two lines of inquiry and examine how rational choice considerations and perceived angry reactions inter-relate in predicting assaultive violence. Using data collected on a random sample of young adults, we assess three hypotheses. First, that both rational choice and perceived anger exhibit additive effects on assault. Second, that perceived anger influences how rational choice considerations are interpreted. Third, that rational choice considerations influence assault under different levels of perceived anger, and in particular, that the effect of sanction threats fall apart under high perceived anger. Future theoretical and empirical directions are outlined.