Transgression Wrongfulness Outweighs its Harmfulness as a Determinant of Sentence Severity

When students suggest sentences for criminal offenders, do they rely more heavily on the harmfulness or on the wrongfulness of the offender's conduct? In Study 1, 116 Princeton University undergraduates rated the harmfulness and wrongfulness of, and suggested appropriate sentences for, a series of crimes. As expected, participants emphasized wrongfulness when choosing an appropriate criminal punishment. In Study 2, 33 Princeton undergraduates made similar ratings for violations of the University Honor Code, and rated their contempt for fabricated amendments to the Code that required sentencers to focus either only on harmfulness or only on wrongfulness. Again, sentences more closely reflected wrongfulness ratings, and participants were more contemptuous of the harmfulness-based proposal. We also consider the theoretical and practical implications of these findings for sentencing laws and policy.     

THE APPRENDI‐BLAKELY CASES: SENTENCING REFORM COUNTER REVOLUTION?

Recent Supreme Court decisions have extended jury trial rights and beyond‐reasonable‐doubt proof standards to certain sentence‐enhancement facts. The first two cases, Apprendi v. New Jersey and Ring v. Arizona, were narrow in scope and relatively uncontroversial. But Blakely v. Washington marked a substantial expansion of the rationale and scope of Apprendi, and threatened to invalidate entire sentencing reform systems, both legally‐binding guidelines of the type at issue in Blakely and it's sequel, Booker v. United States, and statutory determinate sentence systems like the one invalidated in Cunningham v. California. Each of these decisions has potential effects not only on sentencing severity and disparity in the cases controlled by that decision, but also on prosecutorial, legislative, and sentencing commission measures designed to comply with the decision, avoid it, and/or mitigate its impact. Field resistance and avoidance measures are likely to be stronger in jurisdictions where the existing sentencing system enjoyed broad support; in such jurisdictions, resistance may be particularly strong to the more controversial Blakely ruling. Impact assessments must therefore carefully distinguish the separate impacts of Apprendi and Blakely in each jurisdiction being studied, and the extent of support for the existing sentencing system. Such assessments should also examine pre‐existing trends and other independent sources of change; leadership by sentencing commissions or other officials in crafting responsive measures; structural and other features of the sentencing system which render compliance more or less difficult; and second‐stage effects, on sentencing, prosecutorial, or sentencing policy decisions, that reflect the prior compliance, avoidance, and mitigation measures adopted in that jurisdiction. The greatest long‐term effects may be on prosecutorial, legislative, and commission decisions, rather than on sentencing outcomes.     

PATHWAYS TO SEX-BASED DIFFERENTIATION IN CRIMINAL COURT SENTENCING

Using a matched sampling method, this research examined the process of sex-based differentiation in sentencing outcomes for 194 men and 194 women, sentenced over a seven-year period in Christchurch, New Zealand. Consistent with past research, our results showed that judicial processing treated women more leniently than men. Path analyses revealed that judges were less likely to sentence women than men to imprisonment terms because of gendered information and decisions made earlier in the judicial process, such as criminal history, length of custodial remands, and pre-sentence recommendations by probation officers. In contrast, judges exercised considerable leniency towards women (compared with men) in setting the length of prison terms, even after statistically controlling for all sex-differentiated factors such as criminal history. Explanations and implications are discussed.     

“量刑运算化”理念之提倡——以实现量刑结果可验化为目的

“胡斌飙车案”作为研究量刑制度比较典型样本的意义在于，该案揭示出了：社会各方对案件判罚结果之所以发生冲突，归根结底是双方对于量刑结果的“求解”过程存在分歧。这也反映出在当前量刑机制中，推行量刑的“运算化”实有必要，即由过去粗放式的“估堆”量刑转变为精细化的“运算化”量刑，使量刑过程由“可言”向“可验”转变，由此使量刑结果可供刑事诉讼当事人共同验证，进而实现量刑的公正性和公信力。     

对检察机关量刑建议制度之反思与重构

量刑建议权本质上属于公诉权的重要组成部分,而公诉权本质上是一种司法请求权,这种请求权不仅包括"求罪权",同时也应包括"求刑权"。由此可见,检察机关不仅有定罪建议权,同时也有量刑建议权。虽然各地检察机关进行了量刑建议制度方面的探索,但在司法实践中还存在种种弊端。应基于当前量刑建议权实施的现状对量刑建议制度进行重构,以期对具体的司法操作有所裨益。     

认罪认罚从宽制度中的量刑建议

从世界范围看,量刑建议愈渐具有重要地位是当下刑事司法制度公力协商模式悄然风靡的结果。随着我国认罪认罚从宽制度的确立,检察机关量刑建议的重要性也日益彰显,成为牵动认罪案件诉讼程序运行的关键部分。认罪认罚案件中量刑建议制度产生了较多新的实质变化。新形势下,精准刑与幅度刑在认罪案件量刑建议中均具有了新的价值意义,以精准为主、幅度为辅是较为妥当的量刑建议内容模式。量刑建议的效力问题是落实认罪认罚从宽的关键所在,对于《刑事诉讼法》第201条的规定,应当要有较为清晰的认知,包括量刑建议的效力场域、辅助参考到主要依据的转变、一般应当的规范表述、调整量刑建议的规范缘由、量刑建议异议处理程序。对这些问题的充分有效探讨有助于指导认罪认罚从宽制度实践。     

Modeling the Deviant Y in Criminology: An Examination of the Assumptions of Censored Normal Regression and Potential Alternatives

Many dependent variables of criminological interest have censored distributions. Investigations that use such variables increasingly have turned to the Tobit model, a censored regression technique that is specified based on a latent dependent variable. When used under suitable circumstances, this model provides appropriate estimates. This paper discusses key assumptions of the Tobit model. It then highlights the risk of violating these assumptions and reviews alternative flexible parametric and semiparametric modeling techniques, currently used sparingly in criminology, which researchers may find helpful when assumptions regarding the error terms are untenable. By using an empirical example focused on sentencing outcomes and comparing estimates across analytic methods, this study illustrates the potential utility of simultaneously estimating the Tobit model along with some alternatives.

论美国“文化遗产犯罪量刑准则”及其对我国的启示

美国＂文化遗产犯罪量刑准则＂是在美国＂1987年量刑准则＂基础上制定、专门针对文化遗产犯罪的刑事处罚制度。＂文化遗产犯罪量刑准则＂以确定性的量刑方法为指导,实施量刑等级制度。其主要特色在于确定了若干加重量刑的标准,较以往的美国有关文化遗产犯罪的法律在量刑上更为确定和严厉。借鉴美国＂文化遗产犯罪量刑准则＂,克服我国文化遗产犯罪的刑事处罚制度中存在的保护范围不太广、量刑情节不具体等缺陷,无疑有利于加强我国文化遗产的法律保护。     

Alcoholism and Criminal Liability

Having examined the question of whether alcoholism should be regarded as a disease or habitual and learned behaviour, the article assesses from a comparative law perspective the effect of alcoholism as a defence to criminal responsibility. The article proposes a 'disease' model of alcoholism for the purpose of criminal law, and criticises its handling through the law of diminished responsibility.