论量刑事实的证明标准

《刑事诉讼法》、《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》和《关于办理死刑案件审查判断证据若干问题的规定》对量刑事实的证明标准的规定与学术观点之间存在一定分歧.为了防止立法技术上的因素使被告人陷于不利境地以及在界定定罪事实与量刑事实上的无休止争论,罪重事实应当适用与定罪事实相同的证明标准.量刑事实的举证责任分配以及控辩双方的举证能力差异决定着罪轻事实的证明标准应当低于定罪事实的证明标准.其中,从轻处罚的事实可以适用优势证据标准;减轻处罚的事实和免除处罚的事实应当适用明晰可信标准.     

论刑事被害人的过错——以聚众斗殴罪为视角

在侵犯人身权利的案件中,犯罪的发生一般是源于犯罪人和被害人相互作用的结果,但我国刑法以犯罪人为中心,被害人过错在定罪量刑的过程中常常被忽视。对于以犯罪人和国家的二元结构模式,不利于犯罪人权利的保障。因此,司法机关在处理聚众斗殴的案件中很少考虑被害人是否有诱发和促进犯罪的发生。在聚众斗殴过案件中,一旦出出现有刑事被害人死亡的情形,司法机关通常按照刑法292条中的规定,以刑法232条故意杀人罪对犯罪行为人进行定罪量刑。鉴此,有必要将被害人的过错纳入聚众斗殴罪之定罪量刑中,按照主客观相一致的原则对犯罪行为人进行归罪惩处。     

Health Services Considerations Amongst Immigrant Populations

Abstract

The foreign-born population comprised 11.5% of the U.S. population in 2002. Immigration to the U.S. has grown substantially and continues to grow. A close examination of the immigration data shows that immigrant community in the U.S. is not homogeneous and in fact is very diverse both within itself and from the native-born population. U.S. Census Bureau data reveal that these differences create pockets of divergent populations within the country. How these populations assimilate into the U.S. healthcare system is not clearly understood. Cultural values, beliefs, and practices often juxtapose the immigrant to the healthcare system. Religious differences coupled with educational and income disparities add to the challenge of developing and implementing healthcare programs. This paper concludes with suggestions for more research in healthcare to immigrants.     

刑法司法公信力:从基础到进退

与司法公信力和司法公众认同之间的关系相对应,刑法司法公信力与刑法司法公众认同也互为表里,且后者构成了前者的基础。刑法司法公信力与刑法司法公众认同之间的关系有着心理学基础和规范有效性基础,并蕴藏着有效控制犯罪以达致维护社会和谐稳定的最终法治效果。如果想确保并提升刑法司法公信力,则必须致力于刑法司法公众认同,包括刑法解释公众认同、司法定罪公众认同和司法量刑公众认同。刑法司法解释公众认同、司法定罪公众认同和司法量刑公众认同先后构成了刑法司法公信力的环节性基础,从而确保了刑法司法公信力的环节性实现。刑法司法公信力以价值衡量为进,以法治底线为退。     

想象竞合的功能及其存在根据

将罪数论升级为竞合论,关键在于要使罪数论的定罪量刑功能转变为竞合论的量刑功能。想象竞合是竞合论中最为重要的成员,它是一个针对自然行为犯数罪如何量刑的理论。在对想象竞合行为定罪时,犯罪构成仍是定罪的惟一标准,因此想象竞合为数罪,在判决书中,要将数罪一一列明。如果对想象竞合数罪并罚,就否定了其存在的必要性。不能对想象竞合数罪并罚的理由,就是想象竞合的存在根据。想象竞合的数罪中,不法量刑情节与特殊预防必要性的情节高度重合,数罪并罚会造成量刑中的重复评价。较轻的一罪在想象竞合的量刑中仍具有一定的发言权,即宣告刑不能低于轻罪的最低刑,同时必须考虑轻罪的附加刑。     

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.     

Race and the Housing Cycle: Differences in Home Equity Trends Among Long-Term Homeowners

During the past decade, housing markets across the United States experienced dramatic upheaval. Housing prices rose rapidly throughout much of the country from 2000 until the start of 2007 and then fell sharply during the next 2 years. Many households lost substantial amounts of equity during this downturn; in aggregate, U.S. homeowners lost $7 trillion in equity from 2006 to 2009. Aggregate home equity holdings had fallen back to 2000 levels by early 2009. Whereas this intense volatility has been well documented, there remain unanswered questions about the variation in experiences across racial groups, particularly among those who purchased their homes before the boom and kept them through the collapse of the market. Did this housing market upheaval widen the already large racial and ethnic gaps in housing wealth? Using the American Housing Survey, we analyze differences in the changes in home equity experienced by homeowners of different races and ethnicities between 2003 and 2009. We focus on homeowners who remained in their homes over this period, and find that blacks and Hispanics gained less home equity than whites and were more likely to end the period underwater. Black–white gaps were driven in part by racial disparities in income and education and differences in types of homes purchased. Latino–white disparities were most dramatic during the market’s bust.     

Contextualizing sentencing disparities: using conjunctive analysis of case configurations to identify patterns of variability

Using national data from felony cases processed in state courts (n = 48,006), the current study investigates the nature and magnitude of contextual variability associated with sentencing outcomes. Multivariate models are first estimated to identify the main effects of various offender and offense variables on sentencing decisions. Conjunctive analysis is then used to evaluate the contextual variability of each of these main effects across all observed combinations of offender and offense attributes. Separate analyses are also conducted among states with and without mandatory sentencing guidelines to explore whether these guidelines reduce this variability across different contexts. Findings from this study and its comparative methods are discussed in terms of implications for future research on criminal sentencing and assessing the contextual variability of the main effects of particular legal and extralegal factors.     

CUMULATIVE DISADVANTAGE: EXAMINING RACIAL AND ETHNIC DISPARITY IN PROSECUTION AND SENTENCING

Current research on criminal case processing typically examines a single decision‐making point, so drawing reliable conclusions about the impact that factors such as defendants’ race or ethnicity exert across successive stages of the justice system is difficult. Using data from the New York County District Attorney's Office that tracks 185,275 diverse criminal cases, this study assesses racial and ethnic disparity for multiple discretionary points of prosecution and sentencing. Findings from multivariate logistic regression analyses demonstrate that the effects of race and ethnicity vary by discretionary point and offense category. Black and Latino defendants were more likely than White defendants to be detained, to receive a custodial plea offer, and to be incarcerated—and they received especially punitive outcomes for person offenses—but were more likely to benefit from case dismissals. The findings for Asian defendants were less consistent but suggest they were the least likely to be detained, to receive custodial offers, and to be incarcerated. These findings are discussed in the context of contemporary theoretical perspectives on racial bias and cumulative disadvantage in the justice system.