[author]Liu Chongliang

[content]

An Empirical Study on Probation Sentencing Modes

—A Practical Review of 4,238 Verdicts in Criminal Casesof Dangerous Driving

Author Liu Chongliang

Professor, School of Criminal Justice (School of Discipline Inspection and Supervision)，Shanghai University of Political Science and Law

Abstract: There is significant controversy over people's judgment of the substantive conditions for probation, which can be summarized as the opposition between the parallel mode and the progressive mode. In order to verify the model adopted by judges in judicial practice, 4238 judgments on the crime of drunk and dangerous driving were collected as research samples for theoretical hypothesis and model construction. The results showed that the probation discretion was more influenced by the circumstances of the responsible sentence, indicating that judges tend to prefer a parallel pattern. The parallel mode does not conform to the basic legal principles of probation and contemporary China's criminal justice policies, and cannot reflect the preventive nature of probation. It will lead to repeated evaluations of accountability, neglect of the core position of re crime risk assessment in probation discretion, and unreasonable limitations in the application of probation. The binary discretion mechanism of the progressive model provides conditions for expanding the application of probation. A universal application model for micro crime probation should be established, and a probation discretion model centered on the risk assessment of recidivism should be constructed to optimize the probation discretion mechanism.

ion of probation.

According to data published by the Supreme People's Court, the application rate of probation in China has been low for many years. Extrapolating from data in the 2014-2022 Law Yearbook of China and the 2022 National Court Judicial Statistics Bulletin released in 2023, the application rate of probation from 2013-2022 has remained around 30%, while in countries such as Europe and the United States, probation is the most widely applied method of criminal sanction. The probation application rate in the United States usually stays above 60%, and is also one of the most effective means of correcting criminals. It can be seen that there is a huge difference between the probation application rate in China and that in Europe and the United States, and the reasons for this embarrassing situation are: on the one hand, the expansion of micro-crimes under the guidance of the positive criminal law view has shown an irreversible trend, and micro-crimes represented by the crime of reckless driving have led to an increasing quantitative broadening of the crime labels; on the other hand, the judges have a high degree of doubt about the control of risks in the process of probation adjudication, leading to a lower probation application rate. Therefore, the most urgent problem that needs to be solved at present is what kind of technical program to adopt to remove the obstacles to the application of probation. Obviously, the key to resolving the above contradiction is to improve the probation sentencing model in order to expand the application of probation. The problem is that, although the Criminal Law Amendment (VIII) has made major changes to the application of probation, and the legislator also believes that the Criminal Law Amendment (VIII) has further clarified the conditions for the application of probation, the theoretical and practical sectors do not recognize the changes in the conditions of probation, and some scholars even believe that the conditions of probation after the amendment are even more ambiguous. For this reason, this paper, on the basis of the normative argumentation on the conditions of probation, takes the probation discretion of reckless driving, a typical representative of micro-crimes, as an example, and uses regression analysis as a research tool to test the reality of the probation discretion model, and criticizes and reflects on the current mechanism of probation discretion, in order to provide a new technical solution for expanding the application of probation.

1.The empirical analysis way of the probation sentencing model

How to maximize the optimization of probation sentencing mode to appropriately expand the scope of application of probation, need to build a persuasive system of argumentation and the use of appropriate means of analysis. For this reason, I intend to, on the basis of the normative interpretation of the conditions of application of probation, summarize the views on the conditions of application of probation in theory and judicial practice, and use regression method to carry out empirical analysis.

1.1Controversy over parallel and progressive models

Since the 1979 Criminal Law, the legislator has made three revisions to the conditions for the application of probation, which relate only to the substantive conditions but not to the target conditions, in other words, the target of probation has always been "criminals sentenced to less than three years' fixed-term imprisonment or criminal detention". With regard to the amendment of the substantive conditions, the provisions of the 1997 Criminal Law follow the provisions of the 1979 Criminal Law on the conditions for the application of probation, with only a slight difference in expression. The 1979 Criminal Law stipulates that: "If, in the light of the circumstances of the crime and the criminal's repentance, it is considered that the application of probation will not jeopardize the society any further, the criminal may be given a suspended sentence...". "The 1997 Criminal Law deleted only the word "considered", leaving the rest of the text unchanged. The Criminal Law Amendment (VIII) made major changes to the substantive conditions of probation. Although the substantive conditions in the amendment also retained the "circumstances of the crime" and "repentance for the crime", the logical relationship has changed, and the criteria for judging them have also been modified. Firstly, before the amendment, "circumstances of the crime" and "repentance for the crime" were the conditions for judging that "the application of probation will not jeopardize the society again", while the Criminal Law Amendment (VIII) stipulates that both "less serious circumstances of the crime", "repentance for the crime" and "no danger of committing another crime" shall be fulfilled at the same time, which means that it seems that the logical relationship between the three is a parallel relationship. Secondly, the Criminal Law Amendment (VIII) modifies the criterion for judging probation from "not endangering society again" to "no danger of committing another crime".

The Explanatory Notes to the Draft Criminal Law Amendment (VIII) states: "All parties believe that the conditions for the application of probation should be further clarified to facilitate operation." It can be seen that those who amended the law believed that the original legislation was too abstract and general to be conducive to the judgment of judges, so the purpose of the amendment was to facilitate judicial discretion by clarifying the conditions of application. With regard to the amendment's modification of the conditions for the application of probation, various parties have presented different evaluations. The positive evaluation is that the amendment makes the criteria for the application of probation more concrete, which is easier to grasp in judicial practice and increases operability. However, negative evaluations are still prevalent. Some judges are of the view that although the amendment has refined the substantive conditions for the application of probation, it is still too principled and abstract. Even some scholars believe that the amendment not only did not realize the operation of the substantive conditions for the application of probation concrete, but on the contrary, in the justified basis of probation " stirred up the muddy water ", the substantive conditions for the application of probation conditions was clear, after the modification of the amendment, the substantive conditions for the application of probation, on the contrary, more vague. The reason for the different evaluation of the parties is that there is a controversy over the criteria for judging the substantive conditions of probation. According to the controversial views on the substantive conditions of probation, the author summarizes them into two opposing models: the parallel model and the progressive model.

The paralle model means that among the substantive conditions of probation, the four aspects of the crime are minor, there is no risk of remorse, and the probation has no major adverse impact on the community where the probation is lived are the judgment standards applicable to probation, and the logical relationship between these four aspects is a juxtaposition. Some commentators believe that probation can only be applied if it is confirmed that the offender meets the above conditions and remains in society and will no longer endanger society. In fact, the amendment divides the judgment standard of probation in the old law into four juxtaposed judgment factors, namely, the circumstances of the crime are minor, there is a sign of remorse, there is no risk of reoffending, and the probation has no significant adverse impact on the community in which the person lives. The progressive mode means that although it has been amended by the amendment, among the substantive conditions of probation, the circumstances of the crime are relatively minor and the expression of remorse is still the premise of the judgment that there is no risk of reoffending, that is, whether there is a risk of reoffending, it must go through a comprehensive judgment of whether there is a minor crime and whether there is a remorse. The risk of reoffending is the only substantive judgment standard for probation.

The essence of the dispute between the parallel model and the progressive mode lies in the different perceptions of the justification of probation. The basis of the argument behind the juxtaposition model focuses on the justification of probation is based on comprehensive criminal theory, while the basis of the progressive model focuses on the legitimacy of probation based on educational criminal theory. The justification of criminal punishment is based not only on the justification of statutory sentences, but also on the basis for justifying the sentencing of individual cases. For the creation and sentencing of punishments, the ratio of limited retribution to educational punishment has always been a dilemma between legislators and judges, because of the differences in criminal policies in different eras, and the basis of imprisonment has oscillated between the theory of retributive punishment and the theory of educational punishment. In essence, under the modern rule of law, the justification of criminal punishment emphasizes both retribution and education, and cannot only reflect retribution or education. However, based on the historical nature and judgment logic of probation, the justification of probation focuses on the theory of educational punishment. As a special system for the enforcement of sentences, probation is itself a product of educational punishment."Ever since Augustus used probation as a means of rehabilitating criminals, reformation itself has been regarded as the philosophical foundation of probation." It should be pointed out that because the probation discretion consists of two parts, namely the main sentence and the discretion of the suspended execution, the size of the main sentence should of course reflect retribution and prevention, but whether the suspended execution is only reflected prevention. Logically, scholars who hold the juxtaposition model generally believe that the pronouncement of suspended sentences should focus on the use of comprehensive penal theory, and ultimately achieve the purpose of punishing and educating criminals. For example, the Sentencing Guiding Opinions on Common Crimes stipulate that the application of suspended sentences shall be determined by comprehensively considering the facts of the crime such as conduct, responsibility, harm or damage consequences, as well as factors such as the defendant's subjective malignancy, personal danger, and performance of confession and repentance. Although some scholars advocate that the theoretical basis for the application of probation is the theory of educational punishment, the actual view is a juxtaposition. Some scholars believe that the scope of investigation of the "criminal circumstances" in the substantive conditions of probation should include the suspension of the crime, excessive defense, excessive risk avoidance, accessory, coerced accessory, criminal motive, criminal purpose, criminal object, criminal means, crime result, crime amount, etc. Most of the above circumstances reflect the responsible circumstances of the basic crime, of course, including the preventive punishment circumstances, but the use of these circumstances as "criminal circumstances" obviously adopts a parallel model. However, scholars who hold the progressive model usually believe that the justification of probation reflects the preventive purpose of the punishment, and the pronouncement of suspended sentences for offenders who are not in danger of reoffending shows that the use of probation can achieve the purpose of special prevention, there is no need to enforce the punishment, and it can play an effective role in preventing reoffending. Therefore, the "criminal circumstances" in the substantive elements of probation are circumstances that reflect personal danger, that is, the discretion of probation is essentially the discretion of preventive sentence. The progressive mode means that in the discretion of probation, the judgment of the target condition belongs to the judgment of the responsible sentence, and under the premise that the responsible sentence is met, the judgment materials of "criminal circumstances" and "manifestations of repentance" can only be preventive circumstances, while the judgment of "risk of reoffending" can only be attached to "criminal circumstances" and "manifestations of repentance".

It should be pointed out that since the promulgation and implementation of the Eighth Amendment to the Criminal Law, under the background of a significant expansion of minor crimes but no significant increase in the application rate of suspended sentences, which model can be reasonably explained in legal theory and can be in line with the localized practical experience of China's criminal justice requires empirical analysis.

1.2 Hypothesis establishment, sample selection and model construction

To prove which mode judges are more inclined to, it is necessary to put forward theoretical hypotheses, and then select effective judgment documents as empirical analysis samples, and construct regression models and set variables for practical testing.

First, based on two types of probation discretionary models, theoretical assumptions can be made from two directions. Hypothesis 1: If the probation discretion adopts a juxtaposition model, because the "criminal circumstances", "repentance performance" and "risk of reoffending" do not have a subordinate relationship, after meeting the conditions for the object of probation, the judge will pay attention to the comprehensive use of the responsible sentence circumstances and the preventive punishment circumstances in the process of probation discretion, so the judgment basis of "criminal circumstances" and "repentance performance" refers to the responsible criminal circumstances, and the judgment basis of "risk of re-offending" refers to the prevention of sentencing circumstances. Hypothesis 2: If the probation discretion adopts a progressive mode, the "criminal circumstances" and "repentance performance" are only the judgment factors of "risk of re-offending", and the main sentencing discretion focuses on the responsible punishment circumstances, and when the main sentence has been met, the "criminal circumstances" and "repentance performance" can only be preventive sentencing circumstances reflecting personal danger. These two theoretical assumptions mean that if the circumstances of responsibility and preventive punishment are determined whether probation can be applied, it shows that judges prefer the juxtaposition model in practice; If only the prophylactic circumstances that determine whether a suspended sentence applies are applicable, it indicates that in practice judges prefer a progressive model. The trade-off between these two assumptions is one or the other, and the model that judges prefer needs to be examined in practice.

Second, with regard to sample selection, theoretically, all criminal cases that are suitable for probation can be used as a research sample. The sample of the crime of drunken dangerous driving in this study is mainly based on the following considerations: First, the crime is a crime added by the Criminal Law Amendment (8), and the applicable statute of limitations is the same as the substantive conditions of probation after the amendment, which is convenient for the unified collection of the sample. Second, there is only one basic crime in this category, which facilitates the determination of the facts that constitute the basic crime. Third, Article 133 of the Criminal Law stipulates three other types of dangerous driving in addition to drunken dangerous driving, but according to the sample of cases collected in this study, the proportion is very small, and the facts of the basic crime composition are not uniform, and it is not convenient to set variables, so only the crime of drunken dangerous driving is selected as a sample case. All the sample cases in this study were derived from the China Judgment Documents Network, and a total of 4238 valid samples (judgments) were randomly selected. In order to ensure the extensiveness and representativeness of the sample cases, the stratified sampling method was adopted to search for judgments in various provinces on the China Judgment Documents Network, so that the samples were evenly distributed in the eastern, central and western regions. In addition, the judgment date of this sample is roughly from January 2014 to December 2022, and the annual distribution is roughly average. According to statistics, in the total sample, a total of 1894 were sentenced to probation, with an effective percentage of 44.7%; A total of 2,344 were not sentenced to probation, with an effective percentage of 55.3%, and the sample initially met the conditions for empirical analysis.

Third, regarding model construction, since the purpose of the research is to discover how judges arbitrate probation in judicial practice, so as to provide ideas for optimizing the probation discretion model, this paper adopts binary logistic regression analysis. Before building a regression model, you must set the relevant variables of the regression model according to certain rules. In this study, the non-probation group was used as the control group and the probation group was the experimental group, and "whether to impose probation" was used as the dependent variable and various predictors that may affect the application of probation were taken as independent variables. According to the basic jurisprudence of the application of probation, the factors that may affect the application of probation are taken as the design ideas of the independent variables, including the parallel mode and the progressive mode, and finally the sentencing facts and sentencing circumstances extracted from the total sample are used as the independent variables. Probation is not a specific type of punishment, and as a discretionary method of punishment execution, probation discretion is different from the main sentence discretion, so the predictors in the regression model should be constructed around the dependent variable "whether to impose probation".

In this paper, alcohol content and traffic accidents are used as the core independent variables to reflect the circumstances of the responsible sentence. After setting the core variables, set other variables reflecting the circumstances of liability and preventive sentences based on the general principles of probation discretion and the Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Drunk Driving of Motor Vehicles issued by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security in 2013. It should be noted that all variables can be extracted from the judgment documents. To this end, it is proposed to use the following circumstances as other independent variables: driving qualifications, type of vehicle to be driven, road type, surrender (or confession), victim forgiveness, compensation, resistance or evasion of examination, previous convictions, meritorious service, etc. All variables are assigned according to the rules. Because the dependent variable must be dichotomous in logistic regression and the alcohol content is continuous, a transformation is required. The principle of treatment is that as long as the value of the alcohol content is greater than the respective mean, it is numbered as 1, and if the value is less than the respective mean, it is numbered as 0, so that this variable also becomes a dichotomous variable. The specific variable assignment and frequency statistics are shown in Table 1.