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Nordic Sentencing 北欧量刑
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-09-01 DOI: 10.1086/686040
Tapio Lappi-Seppälä
Broad harmony and much commonality characterize the basic principles and core priorities of the sentencing systems of the four larger Nordic countries, notwithstanding rich diversity in details. Since 1960, there have been three distinctive phases in criminal justice policy and associated law reforms. A liberal period of “human and rational penal policy” from the late 1960s to early 1990s reformulated principles of penological thinking and resulted, among other things, in a radical reduction in the use of imprisonment in Finland. A second phase beginning in the mid-1990s, the “punitive turn—Nordic style,” with Sweden playing the central role, included a gradual politicization of criminal justice policy and intensification in penal control especially in relation to drugs, violence, and sexual offenses. Political and police trends in the 2000s have been somewhat contradictory but include success in controlling the use of imprisonment and expanding the use of community penalties. Imprisonment rates rose slightly in the late 1990s but since 2005 have been either stable or declining. There is rich diversity in details among the Nordic countries but also broad harmony in basic principles and priorities.
四个较大的北欧国家的量刑制度的基本原则和核心优先事项具有广泛的和谐性和许多共性,尽管在细节上有很大的差异。自1960年以来,刑事司法政策和相关法律改革经历了三个不同的阶段。从1960年代末到1990年代初,“人道和理性的刑罚政策”的自由时期重新制定了刑罚思想的原则,结果,除其他外,在芬兰大幅度减少了监禁的使用。第二阶段始于20世纪90年代中期,以瑞典为中心的“惩罚性转向北欧风格”,包括刑事司法政策的逐渐政治化和刑事控制的加强,特别是在毒品、暴力和性犯罪方面。2000年代的政治和警察趋势有些矛盾,但在控制监禁的使用和扩大社区惩罚的使用方面取得了成功。监禁率在20世纪90年代末略有上升,但自2005年以来一直保持稳定或下降。北欧国家在细节上有很大的差异,但在基本原则和优先事项上也有广泛的和谐。
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引用次数: 19
Differences in National Sentencing Systems and the Differences They Make 各国量刑制度的差异及其造成的差异
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-09-01 DOI: 10.1086/688454
M. Tonry
Structural differences in sentencing systems and normative differences in the nature and influence of prevailing conceptions of justice make huge differences in patterns and practices in Western countries. In most, the views of elected politicians, the media, and the general public are believed to be irrelevant to sentencing decisions; prosecutors are politically insulated career civil servants and do not engage in plea negotiations concerning sentencing or that constrain judges’ choices; judicial fact finding is required in every case involving a conviction; imprisonment is believed to be harmful and to be used only as a last resort; community punishments are widely used in lieu of imprisonment; laws mandating specific punishments for specific crimes do not exist; and proportionality is believed by officials and scholars to be the fundamental requirement of punitive justice. The United States, usually the only one, is the outlier on each of the characteristics.
量刑制度的结构性差异和主流司法观念的性质和影响的规范性差异,使得西方国家在量刑模式和实践上存在巨大差异。在大多数情况下,当选的政治家、媒体和公众的观点被认为与量刑决定无关;检察官是与政治隔绝的职业公务员,不参与有关量刑或限制法官选择的辩诉谈判;每一个涉及定罪的案件都需要司法事实查明;监禁被认为是有害的,只能作为最后手段使用;社区惩罚被广泛用于代替监禁;不存在规定具体罪行具体处罚的法律;而比例性被官员和学者认为是刑罚正义的基本要求。美国,通常是唯一的一个,在每一个特征上都是异常值。
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引用次数: 4
Sentencing and Penal Policies in Italy, 1985–2015: The Tale of a Troubled Country 意大利的量刑和刑罚政策,1985-2015:一个麻烦国家的故事
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-07-07 DOI: 10.1086/686042
A. Corda
Significant changes in Italian political, socioeconomic, and institutional contexts since 1985 have led to markedly harsher policies and laws. Sentencing law and penal policies have changed substantially. In the late 1980s, the legislature embraced rehabilitation in corrections and enacted a new Code of Criminal Procedure modeled on principles and values typical of adversarial legal systems. The demise in the early 1990s of the so-called First Republic due to the massive bribery scandal known as Mani Pulite (“Clean Hands”) profoundly affected the structure and functioning of the political system, perceptions of crime, and shaping of penal policies. Despite stable and declining crime rates, over time governments have enacted policies overrelying on criminal sanctions. Particular categories of offenders, undocumented immigrants and drug offenders, have been hit especially hard. Rapidly growing imprisonment rates produced overcrowding that was tackled mostly with alternatives to implementation of custodial sentences and pretrial detention. Persisting signs of punitive moderation for the most part are attributable to the inherent inefficiency of the criminal justice system, the “disintegration” of punishment at different stages of the process, and realpolitik policies adopted to address supranational concerns.
自1985年以来,意大利的政治、社会经济和制度环境发生了重大变化,导致政策和法律明显更加严厉。量刑法和刑罚政策发生了重大变化。20世纪80年代末,立法机构接受了矫正中的康复,并以对抗性法律制度的典型原则和价值观为模型颁布了新的《刑事诉讼法》。20世纪90年代初,所谓的第一共和国由于被称为“干净的手”(Mani Pulite)的大规模贿赂丑闻而灭亡,这深刻地影响了政治体系的结构和运作、对犯罪的看法以及刑事政策的形成。尽管犯罪率稳定且不断下降,但随着时间的推移,政府制定了过度依赖刑事制裁的政策。特殊类别的罪犯,无证移民和毒品罪犯,受到的打击尤其严重。监禁率迅速增长造成过度拥挤,解决这一问题的办法主要是执行监禁判决和审前拘留以外的其他办法。惩罚适度的持续迹象在很大程度上是由于刑事司法系统固有的低效率,在过程的不同阶段惩罚的“解体”,以及为处理超国家问题而采取的现实政治政策。
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引用次数: 7
Weathering the Storm? Testing Long-Standing Canadian Sentencing Policy in the Twenty-First Century 风平浪静?21世纪考验加拿大长期存在的量刑政策
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-24 DOI: 10.1086/685755
A. Doob, C. Webster
In contrast with many Western nations, the structure of Canadian sentencing and its overall effects on imprisonment did not change dramatically over the past century. To a large extent, Parliament left sentencing to judges. Broadly speaking, imprisonment was seen as a necessary evil to be used sparingly. Sentencing principles legislated in 1996 largely reflected the status quo. However, the period 2006–15 reflected a dramatic break. The Conservative government in power repeatedly attempted to restrict judicial discretion. Prison was touted as the solution to crime. Scores of politically motivated modifications were introduced to sentencing legislation. Perhaps surprisingly, few of these changes had large effects on large numbers of people. There were no appreciable changes to imprisonment rates by the time of the Conservatives’ electoral defeat in October 2015.
与许多西方国家相比,加拿大的量刑结构及其对监禁的总体影响在过去一个世纪里没有发生显著变化。在很大程度上,议会把量刑交给了法官。一般来说,监禁被视为一种必要的罪恶,应该谨慎使用。1996年制定的量刑原则在很大程度上反映了现状。然而,在2006年至2015年期间,情况发生了戏剧性的变化。执政的保守党政府一再试图限制司法自由裁量权。监狱被吹捧为解决犯罪的办法。量刑立法中引入了大量出于政治动机的修改。也许令人惊讶的是,这些变化很少对大量人群产生重大影响。到2015年10月保守党选举失败时,监禁率并没有明显的变化。
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引用次数: 17
Equality and Human Dignity: The Missing Ingredients in American Sentencing 平等与人的尊严:美国量刑中缺失的成分
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-22 DOI: 10.1086/686256
M. Tonry
Concern for equality and human dignity is largely absent from American sentencing. Prison sentences are imposed much more often than in any other Western country. Prison terms are incomparably longer. The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies. The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws. The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems. Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof at sentencing, and the absence of standards for sentencing of people convicted of multiple offenses at one time or over time.
美国的判决基本上缺乏对平等和人类尊严的关注。监禁判决比任何其他西方国家都要频繁。刑期长得无可比拟。监禁频率较高是惩罚态度和犯罪控制政策政治化的产物。较长的刑期部分是由于各个司法管辖区废除了对全部或部分囚犯的假释,但主要是由于自20世纪80年代中期以来,强制性最低刑期、三振出局、终身监禁和量刑诚实法的普及。应当平等对待罪犯并关心和尊重他们的利益的想法基本上消失了,尽管这些想法在以前的不确定和确定的量刑制度中一直是具有活力的价值。他们的无视在当代法律的本质上是显而易见的,但在不为人所知的政策和实践中也是如此,包括几乎缺乏有意义的上诉判决审查制度,量刑时的证据标准较低,以及缺乏对一次或长期犯有多项罪行的人量刑的标准。
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引用次数: 5
Belgian Sentencing as a Bifurcated Practice? 比利时量刑是一种分裂的实践?
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-22 DOI: 10.1086/685756
Veerle Scheirs, K. Beyens, Sonja Snacken
Belgian sentencing is in a period of turmoil. Belgian judges value their independence. Most believe in the desirability of individualized sentencing and resent intrusions on their autonomy. Although many continue to hold classsical views about the purposes of sentencing, new practices and laws, triggered partly by several decades of rising imprisonment rates and recent efforts by policy makers and correctional officials to contain it, have changed the penal landscape. The public prosecutor has increasing authority to divert cases from investigation and from sentencing judges, leading to de facto sentencing powers for prosecutors. Recent and upcoming innovations have created new freestanding sanctions of work penalties (often elsewhere called community service), electronic monitoring, and probation. A more fully bifurcated legal system is emerging with longer prison sentences for some offenses and offenders, including postprison preventive detention, and more community punishments aiming for a reduced use of imprisonment for others. Many judges are unconvinced though about the desirability of reduced imprisonment use for some convicted offenders. It remains to be seen what Belgian sentencing will look like when practices incorporating recent changes have stabilized.
比利时的量刑正处于动荡时期。比利时法官重视他们的独立性。大多数人相信个体化判决是可取的,并对侵犯他们的自主权表示不满。尽管许多人对量刑的目的仍然持有传统观点,但由于几十年来监禁率不断上升,以及政策制定者和惩教官员最近为控制监禁率所做的努力,新的做法和法律已经改变了刑罚的格局。检察官将案件从调查和量刑法官手中转移的权力越来越大,导致检察官实际上拥有量刑权。最近和即将到来的创新创造了新的独立的工作处罚(通常在其他地方称为社区服务)、电子监控和缓刑。一种更加完全分化的法律制度正在出现,对一些罪行和罪犯判处更长的刑期,包括监狱后的预防性拘留,以及更多旨在减少对其他人使用监禁的社区惩罚。然而,许多法官并不相信减少对某些已定罪罪犯的监禁的可取性。比利时的量刑将会是什么样子,还有待观察,当这些做法结合了最近的变化后,会是什么样子。
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引用次数: 5
No News Is Good News: Criminal Sentencing in Germany since 2000 没有消息就是好消息:2000年以来德国的刑事判决
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-22 DOI: 10.1086/686041
Thomas Weigend
Sentencing practice in Germany has long been stable, reflecting slightly falling crime rates. Public prosecutors dismiss the majority of cases that the police file with them as “cleared.” In a significant percentage of provable cases, prosecutors demand a penance payment of suspects in exchange for dismissal; many others are dismissed without any consequence for the suspect. Criminal courts dispose of more than half of cases in a written procedure, routinely accepting the sentence proposals of prosecutors. A growing number of trials result in “bargained” sentences, that is, sentences agreed on among the judge and the parties. Sentence severity in Germany is generally low. Life sentences are exceptional, and release on parole is available. Overall, only 5 percent of convicted offenders must serve a prison sentence. Another 12 percent receive a suspended prison sentence, and the rest are fined. German society at present does not appear to regard crime and criminal justice as pressing problems. Operating in the shadow of the public interest, agents of criminal justice can pursue a fairly liberal and rational course.
德国的量刑实践长期以来一直稳定,反映出犯罪率略有下降。检察官驳回了警方提交给他们的大多数案件,称其为“已清除”。在很大比例的可证明案件中,检察官要求对嫌疑人支付补偿金以换取解雇;还有许多人被解雇,对嫌疑人没有任何后果。刑事法院以书面程序处理一半以上的案件,通常接受检察官的量刑建议。越来越多的审判导致“讨价还价”判决,即法官和当事人商定的判决。德国的量刑通常较轻。终身监禁是例外情况,也可以假释。总的来说,只有5%的罪犯必须服刑。另有12%的人被判缓刑,其余的人被罚款。德国社会目前似乎并不把犯罪和刑事司法视为紧迫问题。在公共利益的阴影下,刑事司法人员可以追求一个相当自由和理性的过程。
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引用次数: 6
Sentencing in Poland: Failed Attempts to Reduce Punitiveness 波兰的量刑:减少惩罚的失败尝试
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-21 DOI: 10.1086/685539
Krzysztof Krajewski
Poland, like all central and eastern European communist countries, had notoriously harsh sentencing practices and high imprisonment rates, in sharp contrast to western Europe. After 25 years of political, economic, and social reforms, sentencing in Poland remains very different from patterns in western Europe. It is unclear whether that results from particularities of the transformation after 1990 or from shadows of the communist past and mentality. After 1989 substantial efforts were made to reduce punitiveness. A major liberalization took place in the early 1990s under the old communist penal code, the product primarily of changes in sentencing practice, and not in the law. Trends reversed after a new 1998 code took effect. Legislation meant to liberalize sentencing practice instead produced increased use of imprisonment. This resulted mainly from the changing political and social atmosphere. Imprisonment increased while sentencing policies became milder. This seems to result not from especially frequent use of imprisonment or harsh sentences but from abuse of sentencing the main alternative, the suspended sentence. It is imposed often, but is often revoked, with recipients ending up behind bars.
波兰和所有中东欧共产主义国家一样,有着臭名昭著的严厉量刑和高监禁率,与西欧形成鲜明对比。经过25年的政治、经济和社会改革,波兰的量刑仍然与西欧的模式大不相同。目前尚不清楚这是由于1990年后转型的特殊性,还是由于共产主义过去和心态的阴影。1989年以后,为减少惩罚性作出了重大努力。上世纪90年代初,在旧的共产主义刑法下发生了重大的自由化,这主要是量刑实践的变化,而不是法律的变化。1998年的新法规生效后,这一趋势发生了逆转。旨在放宽量刑实践的立法反而增加了监禁的使用。这主要是由于政治和社会氛围的变化。监禁人数增加,量刑政策变得温和。这似乎不是由于特别频繁地使用监禁或严厉的判决,而是由于滥用对主要替代办法,即缓刑的判决。它经常被强制执行,但经常被撤销,接受者最终会入狱。
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引用次数: 11
Understanding the Sentencing Process in France 了解法国的量刑程序
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-21 DOI: 10.1086/685538
J. Hodgson, Laurène Soubise
French sentencing is characterized by broad judicial discretion and an ethos of individualized justice focused on rehabilitation. The aims are to prevent recidivism, and so protect the interests of society, while reintegrating the offender. By contrast, the political Right, characterized by the recent Sarkozy regime, favors deterrence through harsher penalties, minimum prison sentences, increased incarceration, and preventive detention of offenders considered dangerous. The sentencing process can be understood only within the broader context of inquisitorially rooted criminal procedure. The central part played by the prosecutor (including in case disposition through alternative sanctions) and her role in recommending sentences that the court almost invariably endorses, together with the unitary nature of the judicial profession, means that there is remarkable consistency in penalties imposed. The contrainte pénale, based on a reconsideration of the range of available penalties put forward by the Consensus Commission and legislated in 2014, is unlikely to have great impact without investment in the probation service and a change in the judicial culture that still favors simple sentencing options, including imprisonment, compared with alternatives now in place.
法国量刑的特点是广泛的司法自由裁量权和注重改造的个体化司法精神。其目的是防止再犯,从而保护社会利益,同时使罪犯重新融入社会。相比之下,以最近的萨科齐政权为代表的政治右翼倾向于通过更严厉的惩罚、最低刑期、增加监禁和对被认为危险的罪犯进行预防性拘留来进行威慑。量刑过程只能在更广泛的基于调查的刑事诉讼程序的背景下理解。检察官所起的中心作用(包括在案件中通过其他制裁进行处理)和她在建议法院几乎总是赞同的判决方面的作用,加上司法职业的单一性,意味着所施加的惩罚具有显著的一致性。“控烟法”是根据共识委员会(Consensus Commission)提出的对可用惩罚范围的重新考虑,并于2014年通过立法制定的。如果不对缓刑服务进行投资,不改变司法文化(与现有的替代方案相比,司法文化仍然倾向于监禁等简单的量刑选择),控烟法不太可能产生重大影响。
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引用次数: 7
The Evolution of Sentencing Policy and Practice in England and Wales, 2003–2015 2003-2015年英格兰和威尔士量刑政策与实践的演变
2区 社会学 Q1 CRIMINOLOGY & PENOLOGY Pub Date : 2016-06-20 DOI: 10.1086/685754
Julian V. Roberts, A. Ashworth
Sentencing in England and Wales has evolved in a direction apart from other common law countries. Although sentencing problems found in many Western nations are present, legislative and judicial responses have been very different. The use of custody rose steeply in the 1990s and has remained stable around that level in recent years. Crimes of violence and sexual aggression have, however, attracted increasingly longer sentences. The other principal changes are a steep increase in indeterminate sentence offenders, now accounting for some 19 percent of the prison population, and a striking rise in the volume of suspended sentences that has reduced the use of community sentences rather than terms of imprisonment. Net widening has therefore occurred. The principal distinction between England and most other jurisdictions is that statutorily binding guidelines now exist for both magistrates’ and higher courts. Unlike most US guidelines that assign offenses to levels of seriousness within a single sentencing grid, the English guidelines are offense specific. The Sentencing Council has also issued “generic” guidelines applying to all categories of offending. The guidelines have been evolving for over a decade now and cover most common offenses. Growing, but still limited, research suggests modest positive effects on consistency and proportionality in sentencing.
英格兰和威尔士的量刑发展方向与其他普通法国家不同。虽然量刑问题在许多西方国家都存在,但立法和司法的反应却大不相同。监护权的使用在20世纪90年代急剧上升,近年来一直稳定在这一水平附近。然而,暴力和性侵犯犯罪的刑期却越来越长。其他主要的变化是,刑期不确定的罪犯数量急剧增加,目前约占监狱人口的19%;缓刑数量的显著增加,减少了社区判决而不是监禁的使用。因此出现了净额扩大。英格兰和大多数其他司法管辖区的主要区别在于,现在对地方法院和高级法院都有具有法律约束力的指导方针。与大多数在单一量刑网格中划分罪行严重程度的美国指导方针不同,英国的指导方针是针对罪行的。量刑委员会还发布了适用于所有犯罪类别的“通用”指导方针。这些准则已经发展了十多年,涵盖了最常见的犯罪行为。越来越多但仍然有限的研究表明,对量刑的一致性和比例性有适度的积极影响。
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引用次数: 22
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Crime and Justice-A Review of Research
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