A Study On Rationality Of Sentencing

Sentencing is action by the State to exercise power of discretion,constituting an important part of criminal judicial activities. Its directpurpose is to determine whether the criminal should be sentenced and whatdegree of punishment he should take. From old days, many scholars areseeking ways to relate crimes with punishments, in the purpose of findinga sole and accurate degree of sentencing for varied criminal actions.However, given the variety of criminal action in reality, it's impossibleto enumerate every situation in laws and regulations. Therefore, we shallhave to rely on right of discretion by the judges. The judges shall dealwith the individual case and decide sentencing for different criminalsaccording to specific conditions. However, there will be a dilemma arising:if the judges are given too small right of discretion, the execution ofcriminal law will become stiff, and the judges will be hard to deal withsome complicated cases. On the other hand, if the judges are given too bigright of discretion, they intend to deal with the case without anylimitation. The way to resolve this problem lies in imposing an idea orrule on the judges and all other people. That is Rationality of Sentencing.Rationality of Sentencing is the theme of this article. My article willbegin from the philosophic conception of Rationality, and regard allfactors to realize Rationality of Sentencing such as ways and models ofsentencing previously applied to be content of Formal Rationality, anindispensable part of the conception of Rationality. Doing so, we emphasisthe independent value of formal Rationality. At the same time, we will notneglect the importance of substantive Rationality because both formal andsubstantive Rationality are discussed under the conception of Rationality. The Introduction analyses irrational practice of sentencing at presentand emphasis the importance of Rationality of Sentencing. ExceptIntroduction and Ending, the article is written with 37,000 characters. In the first section, by analyzing the conception of Rationality fromthe perspective of philosophic theory, I come to the conclusion thatRationality should contain meaning of Formal Rationality and SubstantiveRationality. After that, I discuss the content of Formal Rationality andSubstantive Rationality respectively. Formal Rationality aims atsentencing basis (mainly laws and interpretation of laws), models ofsentencing and ways of sentencing with neutral value. It requires accurate,scientific and simple legislation and interpretation, models of sentencingin line with current judicial conditions of one state and accurate,transparent and predictable ways of sentencing. Substantive Rationalityof Sentencing means sentencing should be accorded with value of criminallaw, with focus on whether the result of sentencing will be accepted bythe public. It emphasizes on efforts of reasoning and evaluating theRationality of sentencing purpose. By discussing formal and substantiveRationality of sentencing, I conclude the definition of Rationality ofSentencing. That is, criminal sentencing should be based on logiclegislation and judicial interpretation with scientific sentencing modelsand ways as its instruments. The value of fairness, utility and modestypursued by criminal law governing should be realized in the process ofexercising of right of discretion. In the second section, I discuss the requirements of Formal Rationalityof Sentencing at length from three aspect of completion of legislation andinterpretation, ways of sentencing and case system. The article points thatcompletion of criminal legislation, strengthening of legislationcoordination, standardization of judicial interpretation are theprerequisite to realize rational sentencing, and scientific and accurateways of sentencing is also required by Rationality of Sentencing. Throughresearch and comparison of traditional, accurate-pursued and improved waysof sentencing, I am of the...