论罪刑均衡的司法模式

罪刑均衡原则作为刑法的一个重要基本原则,是支撑刑法学发展的一个重要指标。在具体的司法实践中,错综复杂的案情以及层出不穷的社会问题,为实现刑法的公平正义以及追求最为均衡的刑罚裁量,带来了不小困难。现代文明社会要求严格恪守罪刑法定原则,罪刑均衡更成为一个司法层面的问题。然而,司法的过程是复杂的,在司法的过程中,司法界精英们发挥了重要的引导和规范功能。通过对刑罚裁量过程中各种辩证关系的分析和论证,努力寻求一种适合我国国情的罪刑均衡的司法模式。因此,在刑罚裁量的过程中,既要实现公平与效率的平衡,又要从法益侵害及行为人特质二元的衡量标准出发,实现应罚性与需罚性的平衡。最后,以刑罚的效果和民众的接受度作为刑罚适当的重要衡量标准,将刑罚裁量的量刑法理学模式与量刑社会学模式有机结合起来,并建议引入量刑听证制度,从司法的层面积极实现罪刑的均衡。     

Chapter 6. Psychosocial Stressors,Psychiatric Diagnoses and Utilization of Mental Health Services Among Undocumented Immigrant Latinos

Abstract

The combined effects of minority status, specific ethnic group experiences (political, economic, trauma and immigration history), poverty, and illegal status pose a set of unique psychiatric risks for undocumented Latinos in the United States. Restrictive legislation and policy measures have limited access to health care, and other basic human services to undocumented immigrants and their children throughout the nation. However, little is known about the patterns of mental health care use, psychiatric diagnoses and psychosocial problems prevalent among the undocumented who do succeed in presenting to clinical settings and to the mental health sector. To begin to address the need for further understanding in this area, we completed a clinical chart review of 197 outpatient adult psychiatric charts in a Latino mental health outpatient treatment program located in an urban hospital system.

We compared the diagnoses and mental health care use of undocumented Latino immigrants (15%) with that of documented (73%) and US born Latinos (12%) treated in this clinical setting. The undocumented Latinos in our study were more likely to have a diagnosis of anxiety, adjustment and alcohol abuse disorders. The undocumented also had a significantly greater mean number of concurrent psychosocial stressors (mean number = 5, p < .001) ascompared to documented immigrants and US born groups, which both had a mean number of 3 stressors identified at evaluation. The undocumented were more likely to have psychosocial problems related to occupation, access to healthcare and the legal system. However, the undocumented had a lower mean number of total mental health appointments attended (mean visits = 4.3, p < .001) in which to address these stressors as compared to documented immigrants (mean visits = 7.9) and US born (mean visits = 13.3). In terms of other previous mental health service use, the undocumented group had lower rates of lifetime inpatient and outpatient treatment use.

The results of this study suggest the importance of early assessment of psychosocial stressors, substance use and barriers to care when treating undocumented immigrants. Although all Latino groups included in this investigation demonstrated numerable concurrent stressors, our investigation highlights the particular importance of accessible social services and supports for addressing psychosocial stressors in the lives of undocumented patients. Our results stress the importance of reexamining policies, that restrict access to social services and healthcare for the undocumented. Our results also suggest the importance of culturally appropriate evaluation and treatment of substance abuse disorders as well as addressing other psychological and behavioral responses to multiple stressors among undocumented individuals.     

Contemporary prison overcrowding: short-term fixes to a perpetual problem

Since the United States began using incarceration as its cornerstone of punishment for those who transgress the law, this method of discipline has been fraught with problems. One of the most ubiquitous problems found within correctional institutions are the conditions inmates are forced to live in particularly, when penal facilities are overcrowded. These conditions have led to extensive litigation, compelling the judicial system to change. Although overall conditions have improved, a perpetually increasing inmate population continues to plague correctional systems as costs continue to rise. As state budgets have become strained during the economic downturns, many states’ officials view less punitive measures as possible solutions to the excessive costs of administering punishment and overcrowded inmate populations. Due to facility overcrowding, several states have actually been placed under federal court order to reduce their inmate population in order to protect inmates’ constitutional rights. Although this has resulted in a change of policies to help alleviate prison overcrowding, there is little evidence these are anything more than short-term fixes to a problem with no end in sight.     

Restorative Justice,Consistency and Proportionality: Examining the Trade-off

Abstract

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.

Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.     

Sentencing Native Americans in US Federal Courts: An Examination of Disparity

Existing sentencing literature largely focuses on the study of white, African-American, and to a lesser extent, Hispanic offenders. Unfortunately, very little is known about the sentencing of Native American offenders, especially in the federal courts. To address this shortcoming, the current study employs United States Sentencing Commission data for the fiscal years 2006-2008 to examine the comparative punishment of Native Americans. Consistent with the focal concerns perspective and its reliance on perceptions of race-based threat, findings demonstrate that Native Americans are often sentenced more harshly than white, African-American, and Hispanic offenders. Moreover, race-gender-age interactions indicate that during the incarceration decision, young Native American males receive the most punitive sentences, surpassing the punishment costs associated with being a young African-American or Hispanic male. These findings highlight the importance of directing increased attention toward the sentencing of this understudied offender population.     

Reassessing and Redirecting Research on Race and Sentencing

Drawing on a systematic assessment of the accumulated empirical literature and interviews with 25 race and sentencing scholars, this paper argues that the standard approach adopted in research on race and sentencing in criminology is insufficient for addressing the key underlying questions that motivate this work, including whether, where, how, and why race may matter. In light of this assessment, the paper lays out some additional directions for empirical research in this area that would bolster the validity and reliability of our knowledge about how race shapes sentencing and enhance the policy relevance of this work.     

Studying Discretion in the Processes that Generate Criminal Justice Sanctions

This paper presents a typology of discretion that differs from the standard typology of discretion in the legal literature: Type A discretion, which is the generally recognized discretion of individual actors to make decisions within a set of laws and rules, and Type B discretion, which is the crafting of laws and setting of rules in the first place. An analysis using aggregate data from 1992 to 2002 points to the prosecution stage as the primary source of Type A discretion that contributed to the massive increase in incarceration during this period. To understand how this could happen, this paper argues that actions need to be linked to outcomes. We identify three key outcomes of the sanctioning process—crime control, justice (guilt/innocence), racial disparity (fairness)—that deserve more attention from social scientists.     

Risk Technology in Sentencing: Testing the Promises and Perils (Commentary on Hannah-Moffat, 2011)

The target article is a critique of the movement toward using structured risk assessment tools to inform decisions about sentencing. In this commentary, I analyze (a) the conditions under which it may be more or less fair to use well-validated risk assessment tools in this manner and (b) the extent to which doing so is likely to exacerbate, ameliorate, or have no effect on existing racial and other biases in sentencing. I recommend a policy-relevant research agenda that would specifically test whether and how adding well-validated risk assessment tools to the routine sentencing process alter the severity or nature of sentences. This agenda would also evaluate the extent to which these tools are implemented in “real world” settings faithfully enough to bridge the usual divide between science and practice.     

Predicting Proportionality: The Case for Algorithmic Sentencing

A basic principle in sentencing offenders is proportionality. However, proportionality judgments are often left to the discretion of the judge, raising familiar concerns of arbitrariness and bias. This paper considers the case for systematizing judgments of proportionality in sentencing by means of an algorithm. The aim of such an algorithm would be to predict what a judge in that jurisdiction would regard as a proportionate sentence in a particular case. A predictive algorithm of this kind would not necessarily undermine justice in individual cases, is consistent with a particularistic account of moral judgment, and is attractive even in the face of uncertainty as to the legitimate purposes of punishment.     

IMAGES OF DANGER AND CULPABILITY: RACIAL STEREOTYPING,CASE PROCESSING,AND CRIMINAL SENTENCING*

In this paper we argue that the meaning of race in criminal justice decision making will vary depending on other offender and offense characteristics, and that differences in treatment within races may therefore be as large as differences between races. We find that, among adult drug offenders from Washington State, those white offenders who most closely resemble the stereotype of a dangerous drug offender receive significantly harsher treatment than other white offending groups, while among black offenders, it is the defendants who least resemble a dangerous drug offender who receive substantially different—in this case, less punitive—treatment than other black offenders. That is, the exceptions are made for the most serious and the least serious offenders. We discuss the implications of these findings.