转型期我国死刑价值取向分析

我国正处于社会转型期,这一时期犯罪形势不容乐观,而此时刑法修正案（八）却将我国原有的68项死刑罪名减至55个,取消了包括走私文物罪、金融凭证诈骗罪、信用证诈骗罪等共13个经济性非暴力犯罪的死刑,也使其他国家看到了中国对于死刑和人权问题的重视.基于我国的法律文化传统以及当今的社会现实,死刑作为一种极端的刑罚手段存在也是具有相对合理性的,因此当前我国应在限制死刑这一价值取向的基础上,进一步探索我国刑罚制度的构建.     

Lethal Injection in Uncharted Territory: The Need to Ensure the Humanity of Current Death Penalty Practices

When lethal injection was first legalized in the late 1970s, many people viewed it as safe, reliable, and humane. Today, however, lethal injection does not always perform as promised. Due to difficulties with sourcing lethal injection drugs, states are utilizing untested lethal injection protocols, with little knowledge or experience to guide them. This article argues that lethal injection reform requires regulation similar to that for human subject research, and that the practice of utilizing untested lethal injection methods comes very close to falling under the federal statutory definition of “human subject research“ formulated in the Common Rule. This article argues further that even if one decides that it does not, the practice of lethal injection today is the type of conduct that the human subject research regulations were designed to correct. Moreover, society has an interest in ensuring that executions are conducted in a way that reduces pain and suffering to the lowest extent possible. As such, lethal injection ought to receive further review and oversight to ensure that it comports with reasonable notions of humanity.     

A Commentary on the New Zealand Supreme Court Rules

This article critically assesses how some public law principles, including the doctrine of legitimate expectations, are applied in the Commonwealth Caribbean. It proceeds to discuss the impact of international law on public law and to note that, through the implementation of unincorporated treaties into domestic law, the principle of dualism is increasingly losing its significance and protective effect. The consequence of this is that Governments will continue to want more opt outs and will be more cautious about signing treaties which they are not ready to implement.     

Deciding mental retardation and mental illness in capital cases: The effects of procedure,evidence, and attitudes

Abstract

When finding unconstitutional the execution of defendants who were mentally retarded at the time of their crime in Atkins v. Virginia (2002), the US Supreme Court left the States to decide on procedures for deciding a defendant's mental retardation. This has and will lead to substantial variation, and will include juries being responsible for these verdicts. Two studies are presented that test procedural, evidentiary, and attitudinal effects on mock juror verdicts as to a capital defendant's mental retardation. Both studies show significant effects of procedural variables. Making the retardation and death decision at the same trial phase changed jurors’ interpretation of evidence, including severity of mental problems. Jurors were insensitive to differences in the burden of proof on mental retardation verdicts, although demanding proof beyond a reasonable doubt may make jurors more sensitive to retardation evidence when deciding on a death sentence. Areas for future research are outlined.     

Race and the Death Penalty

Abstract

Scholars have learned a great deal about race and the death penalty. Yet the field has limitations: (1) prior research focuses on African Americans and Hispanics but ignores Asian Americans; (2) researchers have not explored Donald Black's (1989) plan to eliminate discrimination called the “desocialization of law.” Black notes that jurors who do not know the race of the offender and victim cannot discriminate. Black then outlines proposals aimed at removing race information from trials, while still providing jurors with relevant legal information. We address both issues through an experiment in which mock jurors (N = 1,233 students) recommended a sentence in a capital murder trial consisting of four conditions: (1) Asian American-white; (2) white-Asian American; (3) African American-white; (4) race of offender and victim unknown. The results suggest that Asian Americans are treated the same as whites, while African Americans continue to suffer from discrimination. Here, we consider the potential role of social status in such outcomes. The results also suggest that African American offenders and unknown offenders face the same odds of a death sentence. Here, we consider two potential interpretations. On one hand, jurors in the unknown condition could have seen an African American offender and a white victim in their “mind's eye,” effectively merging the conditions. On the other hand, death sentences could be the same in the conditions for distinct reasons: Death sentences could be high in the unknown condition because of relational distance between the juror and offender, while death sentences could be high in the African American-white condition because of discrimination. We conclude by considering the theoretical and public policy implications of both the central findings.     

Capriciousness or Fairness?

Abstract

Previous research on capital sentencing have discovered quantitative proof of discrimination, especially by race of the victim. The present study examines prosecutorial decision making in Kentucky. Using a method of analysis developed by Berk et al., it seeks to determine the level of capriciousness (uncertainty) present in the prosecutorial decision to seek the death penalty. Kentucky prosecutors were most likely to seek the death penalty in cases where black offenders killed white victims.     

当罚、可罚与要罚：犯罪构造客观要件的逻辑递进

犯罪成立的主客观要素并非完全一一对应,立法上存在着以条件的面目出现、无需主观认识的客观事实。可罚性和要罚性是区分＂内在＂和＂外部＂的客观处罚条件的标准,同时,与可罚性的关系则是区分＂内在＂的客观处罚条件与罪量要素、结果加重犯之结果的标准。就此,从犯罪成立的客观要素观之,各要件要素之间存在着当罚、可罚与要罚的逻辑递进。     

食品安全犯罪之刑罚配置——以民生刑法为视角

在民生时代,食品安全犯罪的刑罚应当以民生刑法为指导来进行配置.在刑罚配置强度的确定上,我国食品安全犯罪的刑罚配置以国家刑法为导向,在定性错误的基础上强调重刑,存在诸多弊端;根据民生刑法,应当运用社会控制模式对犯罪进行综合治理,在正确定位的基础上合理配置刑罚,顺应世界刑罚的发展趋势逐步实现刑罚的轻缓化.在刑罚配置种类的完善上,根据民生刑法,应将罚金刑上升为主刑,将货值金额作为罚金刑的适用基准,采用倍比罚金制,提高罚金数额,设定最低数额,对犯罪单位配置较犯罪自然人以及相关责任人员更高的罚金数额;根据民生刑法,应增设与食品安全犯罪相配的资格刑刑种,这是惩罚和预防犯罪的需要,是禁止令的改革方向.     

行政处罚与刑罚的衔接问题研究

行政处罚与刑罚属于性质迥异而又密切相关的两种法律制裁措施。为了厘清行政处罚与刑罚的关系。规制司法实践中出现的行政处罚与刑罚的衔接问题,可以从立法与司法实践两方面入手加以完善。一方面,统一立法的内容,实现行政处罚与刑罚转化程序的有效衔接;另一方面,在司法实践中不断细化和调整两类法律的衔接工作,实现行政执法与刑事司法在工作机制上的统一。     

非刑罚化的界限研究

刑罚的流弊引发了西方国家的非刑罚化运动。对于西方国家的非刑罚化运动及其对我国的借鉴意义,国内学者认识不一。目前在我国,非犯罪化是广义的＂非刑罚化＂的内容之一,狭义的＂非刑罚化＂应当包括免予刑事处罚单纯宣告有罪、免予刑事处罚予以非刑罚处罚、对犯罪独立适用的保安处分等内容,对其中存在的问题,我们应当保持清醒的认识。