Implementation Of The Sentencing Procedure Reform

No doubt, the sentencing procedure reforms have been making progress in recentyears and achievements were made in this field. There has been a sharp rise in theopenness and transparency of sentencing activities with more open in the sentencingprocedure and with a description of the reasons of the sentencing. However, with thefurther advancement of the reforms, the fairness and the rationalization of sentencingprocedure issue is still to be solved. Sentencing evidence is information materialswhich be used to evaluate the offender’s dangerousness, the degree of socialharmfulness and prove circumstances of the crime. Sentencing evidence is thefoundation of the prosecution and the defense confrontation mode. It is not only butalso the powerful weapon to effectively constraint judge’s power of discretion.Therefore, the justice of sentencing should be based on the sentencing evidence, thatis to say, we should pay highly attention to the comprehensiveness and accuracy ofthe sentencing evidence all concerned. And it lies in the sentencing evidencecollection, the rationalization of sentencing procedure setting and well-establishedsentencing rules.Sentencing procedures in the prosecution and the defense confrontation moderequire the prosecution and defense as well as the victims to collect and investigateevidences for sentencing. The procuratorial organ is limited to the evidence materialstransferred from the investigative authorities, as the result, they only concerned aboutthe legal circumstances of sentencing and more extenuatory sentencing circumstancesbe ignored. Meanwhile, the procuratorial organ influenced by the idea of legaloversight and prosecution of crime, they tend to focus on the adoption rate ofsentencing recommendation and lack of motivation in comprehensively investigateand collect sentencing evidences. The defense is in a weak state in the criminalproceedings for a long time, about only30%criminal cases with defense lawyer andamong them, the vast majority are the lawyer who pursue do not-guilty defense orthe Legal Aid Counsel and whom have no opportunity for evidence investigation andcollection or with limited ability in obtaining sentencing evidence. While, to those lawyer who are willing to do sentencing defense, they tend to try their best to collectand investigate evidences for the procedural interest or for the money seek. However,the evidences they submit are difficult to tell the true from the false. The victims canprovide sentencing information that the procuratorial organ and the defense can’t.And the information plays a role in safeguarding the fairness of the sentencing. Thereare serious conflicts between not-guilt defense and sentencing defense if thedefendant pleaded not guilty in the interlacing sentencing procedure model and in thissituation the effectiveness of sentencing defense will be greatly weakened. In addition,with the uncertainty of the sentencing rules, it is likely to lead the judge apply judicialdiscretion in non-standard way on the review of sentencing evidence. In short, aboveproblems directly affect the effectiveness of the sentencing procedure reforms.To solve these problems, we should establish a relatively completed sentencingprocedure. First, we could use the successful experience of the common law countriesfor reference, establish the social investigation report system and the work ofcollecting and investigating the information of sentencing will conducted byindependent investigator appointed by court; Second, in the cases that defendantpleaded not guilty, we need separate the condemnation proceeding and the sentencingprocedure that could give both the defense and procuratorial organ enough time to getready for sentencing debate and we also should ensure the investigation report’smaking meet the requirement of related procedure rules; Finally, we still need toestablish special sentencing evidence rules which apply to the sentencing procedureand constrained the discretion of the judge at the same time.The idealized legal system always restricted by the limited resources and underpresent circumstances the conditions for thoroughly reform. In my opinion, thesettings and adjustments should be flexibly done within the existing institutionalframework and the improvement of working mechanism should be properlyconducted. On one hand, we should emphasize the importance of collectingsentencing evidence from the investigation stage, show evidences and point out issuesin the pre-trial preparation procedures, and to create opportunities for all parties getuseful sentencing evidence by properly use the law in the trial phase; on the otherhand, we should also abandon unscientific appraisal system and provide a more relaxed and good practice environment for judicial practitioners including lawyers.