Research On Discretionary Sentencing Circumstances Of The Death Penalty

Currently, the application of death penalty is a highlight of criminal theory,judicial practice, which attracts high attention of social attention simultaneously. Infact, the moderateness on application, and the restraints of process, which conceivedin the discretionary sentence, as an active factor in reduction of capital punishment, isthe entry point of the death penalty controlment. This article systematically analysesthe common discretionary circumstance in death penalty, and it discusses theinfluence on measurement under the concurrence of discretionary circumstances. Thearticle reviews the approach to apply the discretionary sentence circumstances in thehope of providing reference for the judicial practice.The article is divided into four chapters. The Chapter one is the overview ofdiscretionary sentencing circumstance. Comparing different theories, the articleconcludes the definition and feature of the discretionary sentence and summarizescommon circumstances of discretionary sentence in death penalty.In Chapter two, the author analyses the common discretionary circumstance,including follow aspects: Firstly, Criminal motives. The motive of crime has adifferent effect on the death penalty in accordance with the division of the socialnature of discretion. Neutral motives should be sentenced to lighter punishment, whilesociopathic motives should not be the reason of heavy punishment. Secondly,Criminal means. Only extremely cruel means, manly includes disfigurement anddismemberment, are to be given heavy punishment. Destroying corpse shall not incuraggravated punishment. Thirdly, The degree of Intention. Intentional crimes should be differentiated; indirect intent as well as passion and being tempted are to be givenlesser punishment. Fourthly, Ordinary performance of criminals. Criminal recordswould not necessarily point to heavy punishment. Reasonable judgment based on thedegree of deliberateness, the homogeneousness of crimes, the interval between twocrimes. Contribution to the society should be a reason of lesser punishment. Fifthly,Popular indignation. It would become one of the discretionary sentencingcircumstances in the context of excluding unreasonable contents which against theprinciple of legality and death penalty procedure. Sixthly, Victim’s fault. Theappropriate application of victim’s fault involves the defining of “significant fault”,which mainly consists of violation of legal obligation, violation of moral rules,intensifying behaviors, and advanced verbal offense. Seventhly, The defendant’s civilcompensation. As a reflection of criminal reconciliation, sincerely penitential andpositive compensation can be the reason to the lighter punishment.Chapter three discusses the influence on measurement under the concurrence ofdiscretionary circumstances, which includes three situations: Firstly, Concurrenceamong lenient circumstances. The overall social harm should be measured as aprecondition. Only when the crime is not extremely sever, can the criminal be notsentenced to death. Secondly, Concurrence among heavier circumstances. Rather thanthe combination and promotion to the aggravating circumstance, harm to the societyshall be evaluated to distinguish from each single circumstance. Thirdly, Concurrencebetween lenient circumstances and heavier circumstances. Coefficient of the influenceon measurement of penalty should be assessed to balance the proportion of all thespecifications.In Chapter four, the article makes suggestions for the consummate ofdiscretionary sentencing circumstance’s application in the capital case, mainly consistof: Firstly, Attach importance to discretionary sentencing circumstances; Secondly,regulate and refine the discretionary sentencing circumstances; Thirdly, promote theimplementation of death penalty case guidance system.