The Procedural Approaches To Sentencing Justice

The basic proposition of this dissertation is that sentencing is not only a substantive issue but also a procedural issue in criminal justice jurisprudence.The problem of disparity in sentencing in the judicial practice should be addressed by procedural approaches as well as the substantive approaches.By applying the approaches of criminal integration,comparison,and structure analysis,the author analyses the following issues comprehensively and systematically:introduction of the procedural approach to achieve the sentencing justice,the distribution of power and right and their operation,the sentencing procedure,the evidence used in sentencing,and the remedies for sentencing.The author believes that the distribution of the power and right and their operation is the core of sentencing proceeding;the sentencing proceeding is the carrier to achieve sentencing justice;how evidence is used is the key to sentencing justice;and the remedies for sentencing justice is the guarantee of sentencing justice.Based on the examination of the reality and the prospect,this dissertation is devoted to give a complete picture of the theory on the procedural approaches to sentencing justice.This dissertation is divided into 5 chapters(excluding the Introduction part) and counts nearly 220,000 words.Part of the people's sense of justice,sentencing justice has a two-aspect Assessment Criteria:the first is Compatibility of Crime, criminal Responsibility,and Penalty,the second is the consistentcy in sentencing.The first aspect is applied to evaluate whether the individual's sentencing is fair,while the second is applied to evaluate whether the sentencing between different defendants is fair.Sentencing justice is so important in the sense that it is part of the criminal justice,and it guarantees the effect of penalty as well as the legitimate rights of the defendant.However,the opposite of the sentencing justice,the disparity of sentencing becomes a global problem.To realize the goal of sentencing justice,people have adopted varying methods,such as using sentencing guidelines,computer and digital instruments.However,they did not produce good effects.In fact,sentencing is a procedural issue as well as a substantive issue.From this point of view,sentencing justice is composed of both procedural justice and substantive justice.The procedure is the essential approach to achieve sentencing justice.The distribution of power and right and their operation is the core of the procedural approaches to sentencing justice.The sentencing discretion refers to the power that the penalty decider applies to decide whether to impose penalty and which penalty to impose within the law.It is composed of three elements:the standard of sentencing discretion,the justification and the penalty decider.Sentencing discretion should be based on retribution,and adjusted for the need of utilitarianism;it should be based on the fact and law,and take the criminal policies into account;it should attach importance to the promotion and training of the judges as well as the improvement on the Collegiate system,jury system and jurisdiction system,to reduce the potential negative influence on the sentencing justice brought by the decider's factor.The right to recommend sentences refers to the right of prosecutors to express his opinion on the sentence of the defendant to the judges,which is in nature a right not a duty granted for the prosecutor.It is one of the important references for the judges to impose just penalties,methods of the procedural approaches to the sentencing justice,and has the effect to reduce the appeals and protests. We should adopt a dialectic attitude towards the right to recommend sentences,and lay down the principle that it should be applied in the discretion of the prosecutors.As for the cases that apply the sentencing recommendation,matching measures should follow up.The right to counsel for sentencing is the right entitled to the defendant and his attorney to express opinions to the judges on mitigating,reducing or exempting the penalty.It includes the right to be informed of the related sentencing information,the right to doubt and examine the unfavorable sentencing information,the right to recommend sentences and the right to plea,and etc.The right to counsel for sentencing,the right to recommend sentences and the sentencing discretion are the three primary power/right in the sentencing jurisprudence,and fall into a structure of an isosceles triangle.The system of disclosing sentencing reasons connects the sentencing discretion,right to recommend sentence and The right to counsel for sentencing.However,in the sentencing plea bargaining,the relationship among these three power/right deviates from the above form.The sentencing proceeding is the carrier to achieve sentencing justice. There are two models of sentencing proceeding:One is the independent sentencing proceeding model in common law jurisprudence,and the other is the combined sentencing proceeding model in continental countries.The model of our country belongs to the latter.As there are a lot of differences between trial and sentencing in the aspects such as rationale,principles, nature,goals,fact under examine and laws applied,it follows that the sentencing proceeding should be independent of the trial.The independent sentencing proceeding can be divided into two categories:the entirely independent sentencing proceeding and the comparatively independent sentencing proceeding.Their difference lies in whether the sentencing proceeding immediately follows the trial.The author proposes that China's independent sentencing proceeding should offer different choices according to the following factors:whether the parties have reached a sentencing plea,whether the defendant has admitted guilty,the severity of the offense,and the inclination of the defendant and his attorney.If the prosecutor and the defendant have reached the sentence plea before sentencing,it should apply summary procedure;if the defendant admitted guilty or the case is so simple that no extra efforts on sentencing evidence should be made,it should apply the comparatively independent sentencing proceeding;for the case that is punishable by severe penalties particularly death penalty,or the defendant and his attorney asked for some time to prepare for the sentencing proceeding after the trial,it should apply the entirely independent sentencing proceeding.In the mean time,the personality investigation before the sentencing and rules of sentencing should also be improved.How evidence is used is the key to sentencing justice."Sentencing evidence" is the evidence that can be used to prove whether the sentencing fact exists or not.The conception of "sentencing evidence" reflects the requirements of the Evidence referee principle and independent sentencing proceeding.It enriches evidence categories,and gives us a new perspective for the evidence category research.The facts to be proved in sentencing proceeding includes the mitigating or aggravating evidence; The facts exempt of proof in sentencing proceeding refer mainly the facts which needn't be proved in sentencing proceeding because they were proved in former proceeding.In sentencing proceeding,the burden of evidence,standard of proof,proof proceeding are different from the trial. Thus the burden of proof should be assigned accordingly:the burden to prove the fact that closely related to the criminal conduct or circumstances should be borne by the prosecutor;the burden to prove other related sentencing facts should be shared by the parties according to the rule of "Who advocated that who presents evidence".Standards of proof should be established separately for the facts to prove guilty and the facts used for sentencing.The standard of the latter should be lower than the former,but for the capital punishment cases,the standard of proof in sentencing should be stricter to the extent of determination without any doubt. Simultaneously,the procedure to present proof,the procedure to question proof and Authentication procedure about sentencing facts has many specialties.In Examination authentication of sentencing proof,we should pay more attentions to plots of Surrender and rendering meritorious.The remedy for sentencing justice is the guarantee of sentencing justice.When the defendant's access to sentencing justice can not be guaranteed or has already been violated,the defendant is entitled to a right to request the related organ(or the organ supervising it) to take legal measures to correct the wrong.The remedies for sentencing justice include sentencing appeal,the proceeding for sentencing retrial,and the proceeding for review of death penalty.The reasons for sentencing appeal can be categorized into improper sentencing and mistaken sentencing.The reasons for sentencing retrial can be categorized into mistaken sentencing and obviously improper sentencing.It is the need of reality as well as the requirement to apply different modes and principles of the hearing to distinguish the proceedings of appeal and retrial for sentencing and those for conviction.Except the death penalty cases,the scope and the mode of the hearing are different between those two proceedings.In addition,the principle of "no imposing more severe penalties" also applies in sentencing appeal and sentencing retrial.The proceeding for review of death penalty is valuable in ensuring that death penalty is applied fairly. Since the Supreme Court has retained the authority to review the death penalty cases,we should reflect on the nature of proceeding for the review of death penalty and how to improve it.