徘徊在公正与功利之间的我国缓刑--对我国缓刑立法与司法的反思

被宣告缓刑的罪犯如果在缓刑考验期内没有被撤销缓刑,则原判刑罚不再执行,因此,缓刑是对有罪必罚、罚当其罪的反动,具有与生俱来的不公正性。这就要求立法和司法部门在制定和适用缓刑的时候,应当注意缓和、淡化缓刑的这一缺陷。然而,我国立法机关和司法部门并没有在这方面作出必要的努力,以致缓刑适用在我国经常展现出不公正的一面。缓刑的主要价值和目的均在于实现特殊预防,然而,一些法院在适用缓刑的时候,却经常忽视缓刑的这一价值和目的,致使缓刑适用并没有有效实现特殊预防的目的。为了充分发挥缓刑的功能,同时防止缓刑的适用过于随意以致丧失公正性,建议将缓刑适用条件明确化;增设缓刑适用的程序性规定;建立健全缓刑考察机构,将缓刑考验落到实处;增设关于缓刑负担的规定。     

缓刑制度有关问题探讨

缓刑是作为对犯罪分子在惩罚的前提下宽大处理的一种刑罚制度。适用缓刑制度是在维持原判刑罚效力的情况下给犯罪分子以改过机会,是惩办与宽大结合、惩罚与教育改造相结合的刑事政策在刑罚中的具体表现。在我国,虽然新刑法在1997年刑法的基础上对缓刑制度做了全面的规定,但是,在理论研讨和实践运用过程中,缓刑制度还存在很多争议和问题。     

Concepts of Risk in Relation to Organizational Structure and Functioning within the Personal Social Services and Probation

The main argument of this paper is that personal social services, including probation, at both a policy and practice level are increasingly focused on issues of risk. We postulate that risk assessment, risk management, the monitoring of risk and risk-taking itself are rapidly becoming the dominant raison d'être of such agencies, thus supplanting ideologies of meeting need or welfare provision. In turn they have become key to priority setting and rationing, the basis for organizational rationales and structures, the central focus for professional activity and accountability, and measuring quality. Thus an analysis of risk as an organizing principle offers fundamental insights into the rapidly changing nature and organization of statutory social work and probation. There is very little literature that focuses on risk across the spectrum of services. Risk analysis, as such, is most developed in the criminal justice and child protection fields. However, the mental health literature, being centrally preoccupied with notions of dangerousness, is quickly adopting risk terminology. Apart from work on elder abuse, literature on child welfare and community care has been framed in terms of need, issues of risk only coming to the fore around potential admission to residential care. We contend that as issues of rationing and accountability become more dominant, so do concerns with risk. Thus we predict the extension of notions of risk as central organizing principles throughout the social services and probation.     

Is it Possible to Develop and Sustain Non-Traditional Placements? An Evaluation of the Development of Practice Learning Opportunities in Partnership with the Police and Probation Services in the West Midlands

This paper will look at new practice learning opportunities developed between the University of Birmingham and the West Midlands Police and Probation Services. The project was designed to expand placements in the West Midlands, to address in particular the short fall of final year placements and to offer students interested in the area of criminal justice and protection of vulnerable people the chance to have a different type of practice experience.

This paper aims to share the learning gained through an evaluation of the first year of this partnership (2009–2010). The paper will provide an overview of the scheme, outline the process of evaluation and will consider the learning gained from the police and probation schemes separately. The paper will draw on feedback gained through discussions in focus groups and questionnaires completed by work base supervisors, specialist social work practice assessors, practice tutors and students in each setting. The strengths and weaknesses of both schemes will be considered as will lessons for improving and building on the project for future years. The paper will also address questions about the relevance of working with non-traditional agencies particularly in light of the new statutory definition relating to final year social work placements.     

论缓刑保证金制度的设立

为了保证缓刑的有效执行,强化监管力度,提高对罪犯的改造质量,迫切需要对缓刑犯设立保证金制度。这既是适应社会主义市场经济体制的需要,也是适应人们思想观念变化的需要,同时也是积极参与和推行社会治安综合治理的一项重要措施。在执行中,既要合理确定保证金适用的数额幅度,又要严格规范保证金的执行程序及管理办法;严格办案制度和严格执行缓刑的法定条件,加强对保证金的财务管理,杜绝把保证金作为单位的“创收”来源,从而保证缓刑保证金的公正执行而不发生偏差。     

论缓刑的特点及功能

代表着宽容和节俭的缓刑制度,符合刑罚谦抑化的发展趋势和人类文明进步的潮流。本文旨在探讨缓刑的特点和功能,以拓展缓刑理论的深度和广度,推进司法实践中扩大缓刑适用率,拓宽解决中国监狱膨胀、实现司法成本最大效率的途径。     

论缓刑适用标准的改革与完善——以绵阳市涪城区人民法院近三年司法统计数据为例

司法统计数据表明,缓刑适用的主要罪名集中在交通肇事罪、盗窃罪、故意伤害罪、抢劫罪等四个罪名;缓刑适用的主要情节集中在未成年人、积极赔偿或退赃、未完成形态、从犯、积极缴纳罚金、情节较轻、认罪态度好几个方面。刑事司法实践单独将某个法定或者酌定量刑情节作为缓刑适用标准是不妥当的。缓刑适用应当坚持以社会危害性与人身危险性为核心的综合评价原则,对交通肇事罪和暴力性犯罪应当慎重适用缓刑,区分财产性犯罪与暴力性犯罪的缓刑适用标准;并建立缓刑的量刑前调查制度,允许展开是否适用缓刑的量刑辩论。     

Towards "the Field of Corrections": Modernizing the Probation Service in the Late 1990s

The Probation Service in England and Wales has been caught up in the New Labour government's broader programme of "modernization". In a document more radical than anything produced under the previous Conservative government, New Labour has proposed that the Service be brought under centralized control, that its name be changed to reflect its new primary purpose of public protection, and that it be brought into closer structural alignment with the Prison Service. This paper discerns in the case made for centralization and the need for closer ties with prisons an authoritarian impulse which is deeply at odds with the Service's own local traditions, and questions whether the undoubtedly necessary process of modernization must take the form being proposed by the government.     

Violence to Probation Staff: Patterns and Managerial Responses

This article examines the impact of violence perpetrated against probation officers. It presents empirical evidence based upon work carried out under the ESRC Violence Research Programme. It is argued that the managerial response to violence has been largely defensive and piecemeal. Professional responses to violence are context‐bound, while risk assessment is largely confined to the potential harm to the general public posed by offenders. The article concludes by arguing that more attention needs to be given to the evaluation of management responses to violence including appropriate training, and the greater organizational support for safety at work.     

Probation and Social Exclusion

The paper begins with a brief discussion of the value of the term "social exclusion", before drawing on quantitative (survey) and qualitative (interview) evidence to suggest that young people on the caseload of the probation service are, in general, excluded from the full range of social goods. The basis of this exclusion is not only in poverty and unemployment, but in social and personal insecurity, lack of access to the benefits of education and training, and housing and health problems. It is argued that despite their exclusion these young people have predominantly conventional hopes and aspirations, and that there is therefore no reason to believe that a programme for their social inclusion and reintegration would be doomed to fail. The paper then reviews some aspects of present practice in probation which may tend to increase rather than reduce the exclusionary pressure on those with whom the service works, by stigmatizing and marginalizing them through a narrow focus on their offending. It concludes by suggesting strategies for more inclusionary and integrative practice in the areas of anti-custodialism, restorative justice and reintegrative shaming, community safety, and help with access to education, training and health services. The paper considers what local inter-agency structures are needed to support intensive work on offending, and sketches some characteristics of a probation service committed to social inclusion.