A Study On The Limitation Of The Application Of Death Penalty Under The Discretionary Circumstances Of Sentencing

Professor Mark Chang,a criminal law scholar,has pointed out in a brilliant way that “in a case,there may be no legally prescribed circumstances of sentencing,but it is impossible to have no discretionary circumstances of sentencing.” It is an important and realistic path to limit the application of death penalty under the discretionary circumstances of sentencing because of the wide presence of these circumstances in various kinds of normative documents.Discretionary circumstances of sentencing are important references when judges decide whether to pronounce death sentence or staying for execution.Would judges more regard discretionary circumstances when give immediate death sentences instead of those with reprieve? Are discretionary circumstances more significant in the process of determining whether immediate death sentences should be given? Meanwhile,in the theory and practice field of criminal law,there is a general concept about “the application that the legally prescribed circumstances of sentencing are given priority to the discretionary circumstances of sentencing” and “whether or not the discretionary circumstances of sentencing is applied is belong to the scope of the judge's discretion".Within the discretion of the death penalty,is the role of the legally prescribed circumstances of sentencing greater than the discretionary circumstances of sentencing?In view of the fact that the intentional homicide generally includes statutory circumstances and discretionary circumstances,it serves as an entry point to compare the role of statutory circumstances and discretionary circumstances in limiting the application of the death penalty.The study of experiential facts is inseparable from the empirical analysis method and the study of discretionary sentencing should be based on judicial cases.Using the combination of “exemplary case” and common case,after screening,a total of 516 cases of intentional homicides were selected as study samples.Taking the legally prescribed circumstances of sentencing and the discretionary circumstances of sentencing as independent variable samples,the verdict of whether the judgment is “whether or not the death penalty is given” and “whether or not the death penalty is with a reprieve” is the dependent variable.The “Solutions Statistical Package for the Social Sciences” SPSS is applied,supplemented by frequency analysis,listinteraction analysis and binary logistic regression analysis methods.Describe and analyze the various sentencing scenarios in the circumstances,and then observe whether the circumstances have a statistically significant relationship with the judgment results.On this basis,a binary logistic regression model is established by selecting independent variables and dependent variables which are significant to dependent variables.Every regression parameter is analyzed under the premise of model goodness of fit.The results of empirical analysis show that,the most important factor determining the application of death penalty by judges is the endangering consequences of cases and the cruelty of criminal means.The main factor deciding that whether the judge should not apply death penalty to immediate execution is the final attitude and the cause of cases.The application of death penalty to immediate execution is limited by surrender,victim's fault,acknowledge of guilty,repentance,civil contradictions,civil compensation,understanding and confession.It can be seen that in practice,the discretionary circumstances of sentencing are given more weight and are not inferior to the legally prescribed circumstances of sentencing for the application of death penalty.The discretionary circumstances of sentencing are widely applied in intentional homicide cases and become an active factor in judicial control of death penalty.Because the law stipulates the discretionary circumstances in a more summary and general way,the discretionary circumstances of sentencing provide more discretionary space for the discretionary power itself as a "runaway wild horse".In order to better play the role of discretionary circumstances in restricting the death penalty,standardizing the application of discretionary circumstances of sentencing in the death penalty discretion is the proper meaning of judicial reform.The trial sentencing work in local courts is carried out by the Supreme People's Court has achieved remarkable results,but the discretionary sentencing of death penalty cases,especially the crime of intentional homicide,has failed to make any achievements.Considering from the standpoint of standardizing the discretionary circumstances of sentencing,in legislation,we should upgrade the mature discretionary circumstances of sentencing,frequently occurring in judicial practice and have a significant impact on the results of sentencing to the legally prescribed circumstances of sentencing.In justice,we should issue judicial documentsto standardize the application of the discretionary circumstances of sentencing and continue to implement the case guidance system of death penalty for intentional homicide.