我国量刑建议制度的建构

量刑建议制度的实行有利于发挥检察机关的审判监督职能,拓展庭审的辩护空间,约束法官的自由裁量权。完善我国的量刑建议制度应规范量刑建议的提出主体,量刑事实的调查取证,严格掌握量刑建议的具体幅度,规范量刑建议的提出程序,并加强内部监督,避免量刑建议权的滥用。     

量刑建议权监督机制的构建

建立对量刑建议权的监督机制,保证量刑建议权的合法、公正和有效行使,可借鉴英美法系、大陆法系主要国家的先进经验和做法。构建我国的量刑建议权,应形成检察机关的内部监督、诉讼主体的外部监督和公众参与的社会监督的监督机制。     

The Role of Mitigating Factors in Capital Sentencing Before and After McKoy v. North Carolina

In 1990, the United States Supreme Court ruled that capital jurors do not have to be unanimous in deciding whether or not to accept any particular mitigating circumstance presented to them by the defense during the penalty phase of a capital murder trial. This study examines whether this shift in procedure may have altered the role of mitigation in predicting capital sentencing outcomes by comparing death sentencing predictors before and after the McKoy decision with data from an extensive sample of capital cases in North Carolina tried between 1977 and 2002. The results indicate that (1) both the number of aggravating and mitigating circumstances accepted by capital jurors had statistically significant and substantial effects on capital sentencing outcomes both before and after the McKoy decision; (2) the number of mitigating circumstances presented to and accepted by capital juries in North Carolina doubled during the post‐McKoy period; and (3) the influence of mitigating circumstance on capital sentencing outcomes was attenuated in the post‐McKoy period. Implications of these findings are discussed.     

Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts

The role of the prosecutor in criminal punishments remains a fervent topic of criminal justice discourse, yet it has received limited empirical attention, particularly for U.S. Attorneys in federal district courts. The present study examines charging and sentencing outcomes in federal courts by combining charging data from the Administrative Office of the U.S. Courts with sentencing data from the U.S. Sentencing Commission. The merger of these data sources overcomes limitations of each and provides for an investigation of the causes and consequences of federal prosecutorial charging decisions. Our investigation focuses on the subtle but important influences that extralegal offender characteristics exert in this process. Results indicate that some extralegal characteristics are intricately tied to the likelihood of charge reductions. Moreover, these effects sometimes interact to produce compound disadvantages for some groups of offenders. Our analyses are guided by contemporary theoretical perspectives on courtroom decision‐making.     

Distinguishing Race Effects on Pre-Trial Release and Sentencing Decisions

Racial disparities in court dispositions and sentences might reflect systemic biases toward minorities, but they might also stem from race group differences in legal or other extra-legal factors linked to a defendant’s risk for future criminality. Analyses of over 5,000 felony defendants from an urban Ohio jurisdiction revealed that significant main effects of a defendant’s race on release on one’s own recognizance (ROR), bond amounts, and prison sentences were rendered nonsignificant when controlling for legal factors, such as offense severity. Analyses of interaction effects, on the other hand, revealed that African American males age 18–29 experienced lower odds of ROR, higher bond amounts, and higher odds of incarceration in prison relative to other demographic subgroups, even with the inclusion of rigorous controls for legally relevant criteria. The relevance of these findings for understanding disparate treatment at different stages of case processing is discussed.     

Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system's commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts. We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures. Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000–02, along with aggregate data on federal district court caseload features. We find that meaningful trial penalties exist after accounting for Guidelines‐based rationales for differentially sentencing those convicted by guilty plea versus trial. Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties. In addition, trial penalties are lower for those with more substantial criminal histories, and black men. Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.     

Whither the Prosecutor? Prosecutor and County Effects on Guilty Plea Outcomes in Wisconsin

Abstract

By most accounts, the prosecutor is the most powerful person in the courtroom, with discretion to dismiss cases, reduce charges, and offer noncustodial sentences in exchange for guilty pleas. Yet, little is known about the effects of individual prosecutors or community contexts on case outcomes. Relying on data from 318,000 felony and misdemeanor cases in Wisconsin, the present study examines the impact of several prosecutor and county characteristics on case dismissal, guilty plea to lesser charges, and the imposition of a noncustodial sentence following a guilty plea. The authors find that prosecutor caseload composition is associated with variations in guilty plea outcomes, but that neither prosecutor experience nor prosecutor caseload pressure affect other case outcomes. The authors also find that defense counsel and change in defense counsel exert significant influence on guilty plea outcomes. These findings are discussed in relation to focal concerns and courtroom communities perspectives.     

Evidence- Based Research on Criminal Cases Appealed by People＇s Procuratorates From Perspective of the Criminal Cases Appealed by Haidian People＇s Procuratorate during the Past 5 Years

本文依托北京市海淀区人民检察院近五年来的抗诉实践,在比较借鉴国外部分国家刑事抗诉制度的基础上,对我国目前的刑事抗诉制度及实践中存在的问题进行梳理,进而提出了完善我国的刑事抗诉制度的合理化建议。     

量刑事实证明问题研究

2012年《刑事诉讼法》将量刑事实和量刑证据纳入法庭审理程序,量刑事实的证明成为量刑程序的核心问题,确立量刑事实的证明规则才能适应量刑程序改革的需要。量刑证据的可采性规则与定罪证据有所不同,具有盖然性的关联性的材料即可成为量刑证据。对量刑事实中的非犯罪构成的犯罪事实应进行严格证明,而非犯罪事实则适用自由证明法则。非犯罪构成的犯罪事实的举证责任由控方承担,并达到排除合理怀疑的证明标准;非犯罪事实由主张者承担举证责任,只需达到优势证据的证明标准。