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Aggravating and Mitigating Factors in Context: Culture, Sentencing, and Plea Mitigation in Hong Kong 背景下的加重和减轻因素:香港的文化、量刑和辩诉减刑
IF 0.4 Q2 Social Sciences Pub Date : 2017-08-01 DOI: 10.1525/NCLR.2017.20.3.506
K. Cheng
Despite the significant role that aggravating and mitigating factors play in sentencing outcomes, they have been neglected by both policy and research. The purpose of this study is to examine the influence of culture—which has been deemed to be an “elusive” influence—in the plea mitigation and sentencing process. An empirical study was conducted to examine the effects of both offense-specific and offender-specific factors that may serve to aggravate or mitigate the sentence in a magistrate’s court in Hong Kong. Data was collected through courtroom observations of sentencing hearings ( n = 712). Statistical analyses reveal that Chinese cultural and social norms motivate judicial decisions, as defendants who did not conform to the cultural expectations of family, industry, enduring hardships, and maintaining good social order are likely to be sentenced more severely when they are convicted of a crime. A disciplinary model of sentencing is proposed to explain why certain factors are considered as aggravating in Hong Kong’s penal culture. These factors, however, are extraneous to the offense or the culpability of the offender. Implications and future directions are discussed.
尽管加重和减轻因素在量刑结果中发挥着重要作用,但它们一直被政策和研究所忽视。本研究的目的是检验文化的影响-这一直被认为是一个“难以捉摸”的影响-在认罪减刑和量刑过程。本研究以实证研究的方式,探讨香港裁判官法庭对特定罪行及特定罪犯的判刑因素,对加重或减轻刑罚的影响。数据通过量刑听证会的法庭观察收集(n = 712)。统计分析表明,中国的文化和社会规范激发了司法判决,因为不符合家庭、行业、吃苦耐苦和维护良好社会秩序的文化期望的被告在被定罪时可能会被判处更重的刑罚。本文提出一种惩戒性的量刑模式,以解释为何香港刑罚文化中某些因素会被视为加重刑罚。然而,这些因素与犯罪行为或罪犯的罪责无关。讨论了影响和未来的发展方向。
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引用次数: 3
U.K. Counterterrorism Law, Pre-Emption, and Politics : Toward “Authoritarian Legality”? 英国反恐法律、先发制人与政治:走向“威权法制”?
IF 0.4 Q2 Social Sciences Pub Date : 2017-08-01 DOI: 10.1525/NCLR.2017.20.3.355
Christos Boukalas
Since the turn of the century, across North Atlantic countries, counterterrorism law has been an area of relentless, highly prioritized, legal production that often challenges rule of law principles. This article provides a general overview of United Kingdom counterterrorism legislation and, drawing from jurisprudence, state theory, and political philosophy, constructs an analytical framework to assess its implications for the broader shape, function, and logic of law. It starts by assessing the dynamic tension between authoritarian and democratic elements that constitutes modern law, thus setting the overall conceptual framework in which counterterrorism law pertains. It proceeds to analyze U.K. counterterrorism law, by juxtaposing it to its United States counterpart and by deciphering the key trends into which its provisions combine. Based on this account, the article considers the implications of counterterrorism law for the law-form, that is, for the articulation between legal content, logic, and institutionality. It finds that, although the content and logic of counterterrorism law are incompatible with rule of law principles, they are developed in an institutional framework adherent to the rule of law. To account for this paradox, the article concludes that counterterrorism law signals the advent of authoritarian legality, a reconfiguration of the rule of law where the latter holds its institutional shape, but comes to consist of, and be driven by, authoritarian content and purposes. The article outlines the main characteristics of authoritarian legality, compares it to existing approaches to counterterrorism law, and indicates its plausibility for U.S. counterterrorism jurisprudence.
自世纪之交以来,在整个北大西洋国家,反恐法律一直是一个无情的、高度优先的、合法的生产领域,经常挑战法治原则。本文提供了英国反恐立法的总体概述,并从法理学、国家理论和政治哲学中借鉴,构建了一个分析框架,以评估其对法律的更广泛的形态、功能和逻辑的影响。它首先评估了构成现代法律的专制和民主因素之间的动态紧张关系,从而设定了反恐法律适用的总体概念框架。通过将英国反恐法与美国反恐法并置,并解读其条款所结合的主要趋势,本文进一步分析了英国反恐法。在此基础上,本文考虑了反恐怖主义法律对法律形式的影响,即法律内容、逻辑和制度之间的衔接。研究发现,尽管反恐法的内容和逻辑与法治原则不相容,但它们是在坚持法治的制度框架中发展起来的。为了解释这一悖论,文章得出结论,反恐法标志着专制合法性的到来,这是法治的重新配置,后者保持其制度形态,但由专制的内容和目的组成,并受其驱动。本文概述了威权法制的主要特征,将其与现有的反恐法方法进行了比较,并指出其对美国反恐法理学的合理性。
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引用次数: 6
Mandatory Sentencing Around the World and the Need for Reform 世界各地的强制性量刑制度及其改革的必要性
IF 0.4 Q2 Social Sciences Pub Date : 2017-08-01 DOI: 10.1525/NCLR.2017.20.3.391
A. Gray
This article considers the increased use of mandatory sentencing provisions in a range of jurisdictions, including Canada, Australia, the United States, and United Kingdom/Europe. It finds that, whereas some courts have struck out mandatory sentencing laws, often mandatory minimum penalties have been validated. This jurisprudence is considered through a range of themes, including notions of arbitrariness, the doctrine of proportionality, the relevance of objectives of the criminal justice system, and broader questions regarding the separation of powers.
本文考虑了包括加拿大、澳大利亚、美国和英国/欧洲在内的一系列司法管辖区越来越多地使用强制性量刑条款。报告发现,尽管一些法院废除了强制性量刑法,但通常强制性最低刑罚已经生效。这种法理学是通过一系列主题来考虑的,包括任意性的概念,相称性的原则,刑事司法系统目标的相关性,以及关于权力分立的更广泛的问题。
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引用次数: 4
The Impact of Moral Panic on the Criminal Justice System – Hit and Run Traffic Offenses as a Case Study 道德恐慌对刑事司法制度的影响——以交通肇事逃逸为例
IF 0.4 Q2 Social Sciences Pub Date : 2017-05-01 DOI: 10.1525/NCLR.2017.20.2.309
M. Gur‐Arye
The article reveals the relationship between the societal phenomenon of moral panic and the specific waves that it generates in the legal system. It focuses on hit and run traffic offenses and suggests that a moral panic with regard to these offenses uniquely impacted the Israeli criminal justice system during 2002-2013. The media generates concern, fear and outrage that are disproportionate to both the size and the nature of the offenses. In describing hit and run accidents, both the media and the courts demonize the drivers. Both the courts and the legislator react to the panic with disproportionally harsh punishments. The article also offers possible explanation as to why hit and run traffic offenses generated moral panic uniquely in Israel and why this occurred during the period 2002-2013. Although the article focuses on hit and run traffic offenses in Israel, it has more general implications: it reveals in detail the interaction between constructed public anxieties and systems charged with delivering justice.
本文揭示了道德恐慌这一社会现象与其在法律制度中产生的具体浪潮之间的关系。报告侧重于肇事逃逸的交通犯罪,并指出,在2002-2013年期间,对这些犯罪的道德恐慌对以色列刑事司法系统产生了独特的影响。媒体引发的担忧、恐惧和愤怒与这些罪行的规模和性质不成比例。在描述肇事逃逸事故时,媒体和法院都将司机妖魔化。法院和立法者对恐慌的反应都是不成比例的严厉惩罚。这篇文章还提供了可能的解释,为什么肇事逃逸的交通违法行为在以色列产生了独特的道德恐慌,以及为什么这种情况发生在2002-2013年期间。尽管这篇文章关注的是以色列的肇事逃逸交通犯罪,但它有更广泛的含义:它详细揭示了公众焦虑与负责伸张正义的系统之间的相互作用。
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引用次数: 3
Combatting Police Discrimination in the Age of Big Data 打击大数据时代的警察歧视
IF 0.4 Q2 Social Sciences Pub Date : 2017-05-01 DOI: 10.1525/NCLR.2017.20.2.181
Sharad Goel, M. Perelman, Ravi Shroff, D. Sklansky
The exponential growth of available information about routine police activities offers new opportunities to improve the fairness and effectiveness of police practices. We illustrate the point by showing how a particular kind of calculation made possible by modern, large-scale datasets — determining the likelihood that stopping and frisking a particular pedestrian will result in the discovery of contraband or other evidence of criminal activity — could be used to reduce the racially disparate impact of pedestrian searches and to increase their effectiveness. For tools of this kind to achieve their full potential in improving policing, though, the legal system will need to adapt. One important change would be to understand police tactics such as investigatory stops of pedestrians or motorists as programs, not as isolated occurrences. Beyond that, the judiciary will need to grow more comfortable with statistical proof of discriminatory policing, and the police will need to be more receptive to the assistance that algorithms can provide in reducing bias.
关于警察日常活动的现有信息呈指数级增长,为提高警察工作的公平性和效率提供了新的机会。我们通过展示如何通过现代大规模数据集实现的一种特定计算来说明这一点——确定拦截和搜身特定行人的可能性将导致发现违禁品或其他犯罪活动的证据——可以用来减少行人搜查的种族差异影响并提高其有效性。然而,要使这类工具在改善警务方面发挥其全部潜力,法律体系需要进行调整。一个重要的变化将是理解警察的策略,如对行人或驾车者的调查拦截是一个程序,而不是孤立的事件。除此之外,司法部门还需要对歧视性警务的统计证据更加放心,警察也需要更容易接受算法在减少偏见方面提供的帮助。
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引用次数: 41
A Content Analysis of Post-Jones Federal Appellate Cases 后琼斯联邦上诉案件的内容分析
IF 0.4 Q2 Social Sciences Pub Date : 2017-05-01 DOI: 10.1525/NCLR.2017.20.2.233
C. Totten, James A. Purdon
The United States Supreme Court in 2012 in United States v. Jones changed the legal test for what constitutes a police search under the Fourth Amendment. After Jones , a search occurs when: (1) an individual’s privacy rights are violated ( “Katz” test); and/or (2) an individual’s property is trespassed upon ( “Jones” test). From 1967 until Jones , only the Katz test was used. In light of this significant change, this study explores two questions using a content analysis approach: (1) the choice of legal test used by federal appellate courts to decide the “search” question (i.e., the Jones test, Katz test, or both tests), and (2) these courts’ holding regarding whether a “search” occurred. Most of these courts are relying upon Jones in some fashion; however, Jones has not prevented these courts from frequently applying Katz . Though reliance on Jones alone has led to uniform determinations by courts of a “search” and hence enhanced Fourth Amendment protections, overall post- Jones there are nearly an equal number of courts finding a “search” and “no search.” When courts apply Katz alone to evaluate a search, they have held no search occurred. In sum, Jones’ impact on Fourth Amendment search law has been incremental and gradual.
2012年,美国最高法院在《美国诉琼斯案》(United States v. Jones)一案中改变了宪法第四修正案规定的警察搜查的法律标准。在琼斯之后,搜索发生在:(1)个人隐私权受到侵犯(“卡茨”测试);和/或(2)个人财产被侵犯(“琼斯”测试)。从1967年到琼斯,只使用了卡茨测试。鉴于这一重大变化,本研究使用内容分析方法探讨了两个问题:(1)联邦上诉法院在决定“搜查”问题时使用的法律测试的选择(即琼斯测试,卡茨测试,或两种测试),以及(2)这些法院对“搜查”是否发生的看法。大多数法院都在某种程度上依赖于琼斯;然而,琼斯并没有阻止这些法院经常适用卡茨。虽然仅依靠琼斯案就导致了法院对“搜查”的统一裁决,从而加强了第四修正案的保护,但总体而言,在琼斯案之后,发现“搜查”和“不搜查”的法院数量几乎相等。当法院单独使用卡茨来评估搜查时,他们认为没有发生搜查。总而言之,琼斯案对第四修正案搜查法的影响是渐进的。
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引用次数: 0
Penal Humanitarianism? Sovereign Power in an Era of Mass Migration 刑罚人道主义吗?大规模移民时代的主权权力
IF 0.4 Q2 Social Sciences Pub Date : 2017-02-01 DOI: 10.1525/NCLR.2017.20.1.39
M. Bosworth
Since creating the ‘Returns and Reintegration Fund’ in 2008, the British government has financed a variety of initiatives around the world under the rubric of “managing migration” which have blurred the boundaries between migration control and punishment. This article documents and explores a series of overlapping case studies undertaken in Nigeria and Jamaica where the UK funded prison building programs, mandatory prisoner transfer agreements, prison training programs and resettlement assistance for deportees. These initiatives demonstrate in quite concrete ways a series of interconnections between criminal justice and migration control that are both novel and, in their postcolonial location, familiar. In their ties to international development and foreign policy they also illuminate how humanitarianism allows penal power to move beyond the nation state. In so doing, these overseas programs raise important questions about our understanding of punishment and its application.
自2008年设立“回归与重返社会基金”以来,英国政府在“管理移民”的名义下资助了世界各地的各种倡议,这些倡议模糊了移民控制与惩罚之间的界限。本文记录并探讨了在尼日利亚和牙买加开展的一系列重叠案例研究,英国在这两个国家资助了监狱建设项目、强制囚犯转移协议、监狱培训项目和被驱逐者重新安置援助。这些举措以相当具体的方式展示了刑事司法和移民控制之间的一系列相互联系,这些联系既新颖,又在后殖民时期为人所熟悉。在它们与国际发展和外交政策的联系中,它们也阐明了人道主义是如何允许刑罚权力超越民族国家的。在这样做的过程中,这些海外项目提出了关于我们对惩罚及其应用的理解的重要问题。
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引用次数: 30
Human Trafficking, Immigration Regulation and Sub-Federal Criminalization 人口贩运,移民法规和次联邦刑事定罪
IF 0.4 Q2 Social Sciences Pub Date : 2017-02-01 DOI: 10.1525/NCLR.2017.20.1.96
Jennifer M. Chacón
In less than two decades, the issue of human trafficking has evolved from a relatively obscure concept to a widely discussed international social problem that has engendered a host of interventions at the international, national, and sub-national level. The purpose of this article is to shed light on how anti-trafficking efforts have been instantiated at the local level. This article assesses the record of sub-federal anti-trafficking efforts in the United States by looking at state anti-trafficking legislation, newspaper coverage of anti-trafficking efforts within states, and published cases involving state trafficking prosecutions in nine different states in the United States in the period from 2004-2014. These states’ anti-trafficking laws have varied histories. Some state legislators appear to have been motivated primarily by concerns about migration control, others by concerns about the need to further criminalize sexual exploitation. This article discusses these histories and then analyzes the implementation of anti-trafficking laws at the state level by looking at criminal prosecutions brought under these state trafficking laws. This analysis reveals that while trafficking law functions discursively as an important component of state-level migration control efforts in some jurisdictions, by and large state prosecutors in all jurisdictions have largely tended to target citizens, not noncitizens, for their trafficking prosecutions. Most state prosecutors have used state level anti-trafficking statutes to charge members of racial minority groups – largely, but not exclusively, men – for trafficking in connection with commercial sex offenses. The final section of the article explores some of the implications of these findings, and offer suggestions for future research. Anti-trafficking laws have brought needed attention to wide-ranging problems of human exploitation. Like prior iterations of criminal vice regulation, however, the deployment of state criminal laws to achieve anti-trafficking goals can also work in ways that perpetuate racially discriminatory policing and migrant criminalization.
在不到二十年的时间里,人口贩运问题已经从一个相对模糊的概念演变为一个被广泛讨论的国际社会问题,并在国际、国家和国家以下各级产生了一系列干预措施。本文的目的是阐明如何在地方一级实例化反贩运的努力。本文通过考察2004-2014年期间美国九个不同州的州反贩运立法、州内反贩运工作的报纸报道以及涉及州贩运起诉的公开案件,评估了美国次联邦反贩运工作的记录。这些州的反人口贩运法律有着不同的历史。一些州议员的动机似乎主要是出于对移民控制的关切,而另一些人则担心有必要进一步将性剥削定为犯罪。本文讨论了这些历史,然后通过查看根据这些州贩运法律提起的刑事诉讼,分析了州一级反贩运法律的实施情况。这一分析表明,虽然在一些司法管辖区,贩运法作为州一级移民控制工作的重要组成部分发挥着重要作用,但总的来说,所有司法管辖区的州检察官在贩运起诉中大都倾向于以公民为目标,而不是非公民。大多数州检察官都使用州一级的反贩运法规来指控少数种族群体的成员-主要是但不完全是男性-与商业性犯罪有关的贩运。文章的最后一部分探讨了这些发现的一些含义,并为未来的研究提供了建议。反贩运法律对广泛的人口剥削问题引起了必要的注意。然而,就像以前对犯罪行为的监管一样,为了实现反贩运目标而部署州刑法也可能以使种族歧视的警务和移民定罪永久化的方式发挥作用。
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引用次数: 7
Criminal Justice in an Era of Mass Deportation: Reforms from California 大规模驱逐时代的刑事司法:来自加州的改革
IF 0.4 Q2 Social Sciences Pub Date : 2017-02-01 DOI: 10.1525/NCLR.2017.20.1.12
Ingrid V. Eagly, Ingrid V. Eagly
After a sustained period of hypercriminalization, the United States criminal justice system is undergoing reform. Congress has reduced federal sentencing for drug crimes, prison growth is slowing, and some states are even closing prisons. Low-level crimes have been removed from criminal law books, and attention is beginning to focus on long-neglected issues such as bail and criminal court fines. Still largely overlooked in this era of ambitious reform, however, is the treatment of immigrants in the criminal justice system. An unprecedented focus on immigration enforcement targeted at “felons, not families” has resulted in a separate system of punitive treatment reserved for noncitizens, which includes crimes of migration, longer periods of pretrial detention, harsher criminal sentences, and the almost certain collateral consequence of lifetime banishment from the United States. For examples of state-level solutions to this predicament, this Essay turns to a trio of bold criminal justice reforms from California that (1) require prosecutors to consider immigration penalties in plea bargaining; (2) change the state definition of “misdemeanor” from a maximum sentence of a year to 364 days; and (3) instruct law enforcement agencies to not hold immigrants for deportation purposes unless they are first convicted of serious crimes. Together, these new laws provide an important window into how state criminal justice systems could begin to address some of the unique concerns of noncitizen criminal defendants.
在经历了一段持续的过度刑事化时期后,美国刑事司法制度正在进行改革。国会已经减少了对毒品犯罪的联邦判决,监狱增长正在放缓,一些州甚至关闭了监狱。低级别犯罪已经从刑法中删除,人们开始关注长期被忽视的问题,如保释和刑事法院罚款。然而,在这个雄心勃勃的改革时代,移民在刑事司法系统中的待遇问题在很大程度上仍被忽视。针对“重罪犯而非家庭”的移民执法前所未有地受到重视,这导致了一个针对非公民的单独惩罚性待遇体系,其中包括移民犯罪、更长的审前拘留、更严厉的刑事判决,以及几乎肯定会被终身驱逐出美国的附带后果。作为解决这一困境的州级解决方案的例子,本文转向加利福尼亚州的三项大胆的刑事司法改革:(1)要求检察官在辩诉交易中考虑移民处罚;(2)将国家对“轻罪”的定义从最高刑期一年改为364天;(3)指示执法机构不以驱逐出境为目的扣留移民,除非他们首先被判犯有严重罪行。总之,这些新法律为了解州刑事司法系统如何开始解决非公民刑事被告的一些独特问题提供了一个重要的窗口。
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引用次数: 13
Lost in Translation? Examining the Role of Court Interpreters in Cases Involving Foreign National Defendants in England and Wales 迷失在翻译中?审查法庭口译员在英格兰和威尔士涉及外国被告的案件中的作用
IF 0.4 Q2 Social Sciences Pub Date : 2017-02-01 DOI: 10.1525/NCLR.2017.20.1.130
A. Aliverti, Rachel Seoighe
Court interpreters have seldom been featured in studies on the criminal courts. Until recently, cases requiring court interpreters were rare and marginal. The peculiarity and historical rarity of these cases may explain the lack of academic consideration of the work of court interpreters in the criminal justice literature. Rapid demographic changes brought about by mass migration, however, are changing the make-up of criminal justice proceedings, rendering court interpreters key participants and inexorable aides for the everyday running of the criminal justice system. This article examines the increased reliance on interpreters and the nature of their involvement in criminal justice proceedings. It will explore the relationship between interpreters and defendants, on the one hand, and between interpreters, counsels, and judges, on the other. Drawing on empirical data stemming from a research project on foreign national defendants conducted in Birmingham’s criminal courts, we explore issues of trust and reliability underpinning the intervention of court interpreters and the implications of these interventions for the defendant’s case. The use of interpreters aims first and foremost to ensure the defendant’s right to defense. Yet, as we show, their intervention is often propelled or hindered by instrumental, procedural, or logistical reasons, intimately linked to the rapid transformation of the demography of defendants and the privatization of services related to the criminal justice system.
法庭口译员在刑事法庭研究中很少被提及。直到最近,需要法庭口译员的案件还很少,而且很少。这些案件的特殊性和历史稀有性可能解释了刑事司法文献中缺乏对法庭口译员工作的学术考虑。然而,大规模移徙所带来的迅速人口变化正在改变刑事司法程序的构成,使法庭口译员成为刑事司法系统日常运作的关键参与者和不可或缺的助手。本文探讨了对口译员的日益依赖以及口译员参与刑事司法程序的性质。它将探讨口译员和被告之间的关系,以及口译员,律师和法官之间的关系。根据伯明翰刑事法院对外国被告进行的一项研究项目的经验数据,我们探讨了法庭口译员干预的信任和可靠性问题,以及这些干预对被告案件的影响。使用口译员的首要目的是确保被告的辩护权。然而,正如我们所表明的,他们的干预往往受到工具、程序或后勤原因的推动或阻碍,这些原因与被告人口结构的迅速转变和与刑事司法系统有关的服务的私有化密切相关。
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引用次数: 15
期刊
New Criminal Law Review
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