Sentencing Disparity and Sentencing Guidelines: the Case of China

IF 1.8 4区社会学 Q2 CRIMINOLOGY & PENOLOGY

Asian Journal of Criminology Pub Date : 2021-11-06 DOI:10.1007/s11417-021-09357-0

Xifen Lin, Sihong Liu, Enshen Li, Yong Ma

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引用次数: 5

Abstract

This study investigates sentencing disparity under the sentencing guidelines in China. Drawing upon the firsthand data of 509 criminal cases from a county-level court in 2015, our research examines the impact of legal and extralegal factors on sentencing outcomes and unveils a multiplicity of sentencing practices by judicial officers with three particular findings. First, the sentencing guidelines have to a great extent guided and affected sentencing judges, especially with regard to their in/out decisions (e.g., probation vs. imprisonment) and decisions on the length of imprisonment sentences. Second, substantial discretionary power is still left open for judges to determine in/out decisions. More specifically, female, elderly, and socially advantaged offenders are given more lenient sentences than others in judges’ in/out decisions. Third, there are different sentencing patterns across crime types (e.g., traffic casualty and dangerous driving); that is, offenders committing ordinary traffic casualty are under-punished while those committing dangerous driving are over-punished. These findings indicate that formal sentencing guidelines fail to reduce sentencing inconsistency by fostering a uniform and principled model of sentencing. This is mainly because the State’s overarching criminal justice policy has continued to have strong ramifications for sentencing outcomes in China.

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量刑差距与量刑指南——以中国为例

摘要本研究考察了中国量刑指南下的量刑差异。根据2015年某县级法院509起刑事案件的第一手数据，我们的研究考察了法律和法外因素对量刑结果的影响，揭示了司法人员量刑实践的多样性，并得出了三个特别的发现。首先，量刑指南在很大程度上指导和影响了量刑法官，特别是在他们的入/出决定(例如缓刑还是监禁)和关于刑期的决定方面。其次，法官仍然有很大的自由裁量权来决定是否做出判决。更具体地说，女性、老年人和社会地位优越的罪犯在法官的“入/出”判决中比其他人得到更轻的判决。第三，不同犯罪类型(如交通伤亡和危险驾驶)的量刑模式不同;也就是说，对普通交通事故的肇事者处罚过轻，而对危险驾驶的肇事者处罚过重。这些发现表明，正式的量刑指南未能通过建立统一的量刑原则模型来减少量刑不一致。这主要是因为国家的总体刑事司法政策继续对中国的量刑结果产生强烈影响。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Asian Journal of Criminology CRIMINOLOGY & PENOLOGY-

CiteScore

3.00

自引率

10.50%

发文量

期刊介绍： Electronic submission now possible! Please see the Instructions for Authors. For general information about this new journal please contact the publisher at [welmoed.spahr@springer.com] The Asian Journal of Criminology aims to advance the study of criminology and criminal justice in Asia, to promote evidence-based public policy in crime prevention, and to promote comparative studies about crime and criminal justice. The Journal provides a platform for criminologists, policymakers, and practitioners and welcomes manuscripts relating to crime, crime prevention, criminal law, medico-legal topics and the administration of criminal justice in Asian countries. The Journal especially encourages theoretical and methodological papers with an emphasis on evidence-based, empirical research addressing crime in Asian contexts. It seeks to publish research arising from a broad variety of methodological traditions, including quantitative, qualitative, historical, and comparative methods. The Journal fosters a multi-disciplinary focus and welcomes manuscripts from a variety of disciplines, including criminology, criminal justice, law, sociology, psychology, forensic science, social work, urban studies, history, and geography.