Beccaria Was Deeply Affected By Some Critics Criminology Essay

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Beccaria was deeply affected by some critics, due to contemporary governmental misrules, inhumanity and tyranny, even a criminals justice also had no criterion resulting in a unfair trial. He remarked of his personal feeling to write a book on "On Crimes and Punishment" and proposed that some personal opinions about a criminal justice should have. He believed all people should have same treatment while under the law, and they need to take responsibility for their behaviors (Shoemaker & Wolfe, 2005, p.7). Besides that, punishment should fit the crime, which means that people who commits a serious crime should suffer the consequences and take more law abiding responsibilities, otherwise crime would not be prevented in a situation where a serious crime received lenient punishment (O'Mahony, 2002, p.221), because people would not be afraid of the criminal consequence, then it means that the deterrence of punishment might not play a role. On the contrary, minor crime which gets harsh punishment also is inhuman, it should be corresponding to the lighter punishment (Abrahamsen, 1945).

Moreover, he argued determinants in efficiency for preventing crime should depend on how certainty and celerity rather than severity (Clear, Cole & Reisig, 2010, p.38). Based on the three elements, Becarria (1764) proposed certain principles for further description: (1) The function of the law is used to maintain social contract, (2) Only legislators can make laws, (3) A judge's decision must comply according to the law. (4) A judge should not explain the law in their own personal way. (5) Punishment should be built on the principle of pain and pleasure. (6) Punishment depends on the basis of damage degree to society. (7) Punishment should be celerity. (8) Everyone should have equal treatment when on trial. (9) Abolish the death penalty. (10) Prohibit extorting a confession by torture. (11) Prevent the crime rather than to punish the convicts (Walsh & Hemmens, 2008, p.46).

Jeremy Bentham (1748-1832)

Bentham who was a legal philosopher and legal reformer at that time. He published a book "An Introduction to the Principles of Morals and Legislation" in1781 and it was the first time to put forward a concept of hedonism (Samahe, 2006, p.72). He believed that the nature of people is to pursue happiness and avoid pain, because of this, people's behavior, thinking and expression in the same way are dominated by the two elements (Perry et al., 2008, p.539). Another concept of Utilitarianism, he deemed any laws and organizations should base on the principle of the greatest happiness to the greatest number, which means to maximize the happiness for most people rather than the pain (Sunita, 2005, pp.111-112). The purpose of law is such doing that to help most people pursuing the greatest happiness by use the deterrence of punishment to prevent crime in making society more secure.

Bentham argued that everything can increase happiness and reduce pain, in the criterion of moral, it would define as positive happiness; oppositely, it was negative happiness. On the other hand, people are rational and would use a felicific calculus to measure the consequence of a behavior, if the consequence would receive happiness, they would take the action; on the contrary, they would stop the behavior because they would avoid the consequence to bring to a painful feeling (Simonds, 1995, p.9).

Also, Bentham improved Beccaria's early argument of Proportionate Punishment to Crimes (罪刑相适应原则) in further, and proposed certain rules of calculation on the argument. He argued that the pain of punishment should exceed that of happiness of the crime. In addition a greater offense of the crime should receive a greater punishment (Tonry, 2011, p.266). He also argued that people have a free will to do what they want and what they do not want, when a situation of happiness exceeds than pain, which may produce a motive power to drive them to do the behavior (Siegel, 2013, p.103). A criminal just wants to pursue the happiness then commits the crime, nevertheless, the criminal behavior concurrently destroyed other people' happiness and resulted in causing them pain, as a consequence, the behavior should be punished.

In the angle of Utilitarianism, he asserted punishment has four purposes: (1) Prevent all the crime - this is extensive and the main purpose of punishment. (2) Prevent the most serious crime - someone determines to commit the crime, the second purpose is to reduce the harmfulness in as much as possible. If there are two ways which can cause the same consequence and can be used by a criminal to commit a crime, he should use the less harmful way to commit it. (because he would receive the lighter punishment). (3) Reduce the harmfulness - someone decides to commit a crime, the third purpose is prevent a criminal would commit exceeding and unnecessary harmfulness over his criminal intent. (Criminal would only commit an expected degree of harmfulness of a crime). (4) Use a minimum cost to prevent crimes (Anderson, Mangels, Langsam & Dyson, 2002, p.287).

Bentham also emphasized the law should not punish in the following of four situations: (1)Groundless - the behavior is no harm to society, the punishment is unnecessary. (2)Inefficacious - the behavior could not use punishment to prevent. (3)Unprofitable or cost is too expensive - the cost of punishment exceeds the cost of prevention. (4)Unnecessary - crime can be prevented without punishment. Or if harm could automatically stop, then should adopt the above fourth purpose (minimum cost- such as sentence a fine or probation) to achieve the goal of preventing crime (Bentham, 1789, p.314).

Later on the period of the modern version of classical school, the theorists criticized the ideas of positivist school were impracticable on prevention of crimes, may not effectively explain and reduce the crime. Afterwards, the idea of social defense was introduced, there are some theorists base on Beccaria's and Benthem's ideas and create two types of theories for preventing crime:

General deterrence theory

The theorists believed that punishment to criminal can produce an effect of deterrence to the general population. They thought although people have rational thinking, they would consider the weight of happiness and pain, if pain exceeds happiness, then the behavior will not occur, but the case needs to calculate the external factors of celerity, certainty and severity (IFPO, 2008, pp.36-37). If the possibility of incarceration rate is very low, then the deterrence may not be effective (Certainty); if the suspect is arrested, but the criminal process has to take a long time between the trial and the crime behavior, then will weaken the relevance of both, that simultaneously reduce the deterrence of crime (Celerity); if punishment is too softhearted, people are not afraid so then crimes will also occur (Severity) (Ritzer & Ryan, 2011, p.133).

Specific deterrence theory

The purpose of the theory is use a way to segregate (death penalty or imprisonment) the criminal from the general population for avoiding the criminal offends again, in exchange for public safety. In addition, the theorists believed that the criminal will respond fearfully under the sanction, afterward he will not commit crime again after returning to the society (Stoll, Raphael & Project, 2009, p.132). For another purpose of this theory is to help the criminal rehabilitating their attitude for later return to society since the serving time in prison (Lin, 2009, pp.76-77).

In practice, legislators mainly focus on how to prevent the general population in not committing criminal behaviors rather than how to rehabilitate the minority of criminals. Therefore, some harsh punishments (e.g. death penalty, life sentence) derived from the state and through cite some cases of criminal sanction as examples for deterrence to the general population, to reduce the possibility of committing the crimes by potential offenders.

Take Iran as example, the region still use hanging in public to make the population aware of crime. Refer to the report from international human rights non-governmental organization, the Iranian death rows involving drug-offense accounted for 80% of 676 executions in 2011, it means there were 540 people were executed because of drug-offenses, the number was increased fivefold from the year of 2008 and gradually increasing year by year (Glanvill, 2012). For that reason, is it meant that severe punishment could not reach its goal of deterrence to the public, or just as the theorists of general deterrence thought the three elements of celerity, certainty and severity should concurrently increase then the crime rate would drop?

Theoretical framework

From these theories, the three external elements would have an affect on the criminals' behavior, but how much degrees of effectiveness in the four regions of China, Taiwan, Hong Kong and Macao? Based on that, this study constructed the following theoretical framework map by using severity, celerity, and certainty to explore how much degree of the three elements would affect to the incidence of drug trafficking cases in the four regions?

Celerity

Certainty

Severity

Incidence of drug trafficking cases

A theoretical framework will be implemented on subsequent study.

Study questions

According to the situations on the four regions and combine the above theories, the study will create some questions to explore:

In practice, which region has the harshest punishment for drug trafficking and which region has the shortest time in dealing with criminal procedures? In addition, what is the ratio of suspects who were found guilty or giving probation in the four regions?

For some regions retain the death penalty and a life sentence in dealing with some serious drug-trafficking cases, how an incidence of a drug trafficking case in the regions? Is the severest punishment effective in controlling the crime?

What policies does Macao need to improve in fighting drug trafficking crime?

Chapter 3 - Methodology

This study will collect data from criminal judgments in China, Taiwan, Hong Kong and Macao, with this data it can acquire the degree of criminal punishment (severity), with the time between arrest and court decision of first instance (celerity) and the data whether a suspect was sentenced to imprisonment / death penalty or probation /training center order (certainty). In addition, through the comparative method it found out the different regions strengths and weaknesses on each of these elements.

Sampling

This study will use secondary data from local government websites, although the data has high authenticity, but the judgments are not plentiful for online access. Base for this reason, the study will adopt non probability sampling to select the most up to date in 100 judgments (involving cases of drug trafficking) as samples. For the regions of China, Taiwan and Hong Kong, the samples selected the date posted from 2012/1/1 to 2012/12/18, and in Macao, due to the number of judgments been insufficient, therefore the samples selected the date posted from 2010/3/18 to 2012/12/18.

In China the samples were obtained from the website of China Court and Shenzhen Baoan District People's Court, due to the judgments accessed from China Court which concentrates more on Central China, such as the provinces of Sichuan, Henan or Hunan, therefore the judgments coming from Shenzhen can supplement to the shortage of South regions of China, this will make the samples covering a broader area in order to avoid too many cases concentration in the region. In Taiwan, the samples accessed from 10 District Courts of Taiwan, including the District Courts of New Taipei, Taipei, Shilin, Yilan, Keelung, Taoyuan, Hsinchu, Miaoli, Taichung and Tainan. In Hong Kong, samples came from the District Court of Hong Kong Special Administrative Region. In Macao, samples came from Court of Second Instance of Macao Special Administrative Region.

From the contents of the judgments in the four regions, due to some suspects who committed more than one crime and one of the crimes was not relate to drug trafficking, another situation is that one case involved more than one suspect and one of the suspects committed other crimes that is not related to drug trafficking, hence, the samples only count for the crime of drug trafficking, drug manufacture, drug smuggling and drug transport.

The samples collected from 100 judgments from each region and the number of sample respectively are: China has 155 suspects, Taiwan has 135 suspects, Hong Kong has 104 suspects and Macao has 113 suspects. The following table is shown the sources of the samples in each region:

Region

Source

Number of judgments

Number of suspects (sample)

China

People's Court of Sichuan

8

100

12

155

People's Court of Henan

8

15

People's Court of Chongqing

10

14

People's Court of Shaanxi

5

9

People's Court of Hunan

30

61

People's Court of Guangxi

14

19

People's Court of Guangdong

25

25

Taiwan

New Taipei district court

10

100

10

135

Taipei district court

10

11

Shilin district court

10

13

Yilan district court

10

14

Keelung district court

10

20

Taoyuan district court

10

13

Hsinchu district court

10

16

Miaoli district court

10

12

Taichung district court

10

14

Tainan district court

10

12

Hong Kong

District Court

100

104

Macao

Court of Second Instance

100

113

Table 3: Distribution table for the samples in the four regions

Chapter 4 - Study results

Severity

China

The data collected from different regions of the Chinese People's Courts, there were 100 criminal judgments found and involve 155 suspects, five of those suspects committed more than one crime and one of the crimes is not relate to drug trafficking (e.g. crime of drug possession, crime of providing shelter for others to drug taking, robbery), therefore the samples will only count for the single criminal penalty in that situation. The following table shows the trial results of the suspects:

Severity in China

Valid Percent

Cumulative Percent

1.

Probation

0.6

0.6

2.

0.01-4.99 years

54.5

55.2

3.

5-9.99 years

28.6

83.8

4.

10-14.99 years

11.0

94.8

5.

15-15+ years

5.2

100.0

100.0

Mean:

2.6516

Mode:

2.00

S.D.:

0.87974

Table 4: Frequency distribution table for the Chinese suspects on the severity section

The table shows the distribution of those 155 samples, and the trial result is integrated into seven scales from the lenient punishment to the severest punishment. The result indicated most suspects were sentenced to less than 5 years imprisonment (Mode = 2, Valid percent = 54.5)

Figure 3: The trial results from China

The figure shows the frequency distribution of the 155 Chinese suspects on trial results, the three most sanctions are: 85 suspects were sentenced to less than 5 years imprisonment, secondly, 44 suspects who were sentenced from 5 to less than 10 years imprisonment, and 17 suspects were sentenced from 10 to less than 15 years imprisonment.

Taiwan

There were 138 suspects found in 100 judgments from Taiwanese district courts, and three of the suspects committed other drug related crimes (e.g. transfers drug to others, drug use), consequently, 135 suspects are left as samples in this section. The result is shown in the following tables:

Severity in Taiwan

Valid Percent

Cumulative Percent

1.

Probation

4.4

4.4

2.

0.01-4.99 years

28.1

32.6

3.

5-9.99 years

38.5

71.1

4.

10-14.99 years

12.6

83.7

5.

15-15+ years

14.8

98.5

6.

Life sentence

1.5

100.0

100.0

Mean:

3.0963

Mode:

3.00

S.D.:

1.1452

Table 5: Frequency distribution table for the Taiwanese suspects on the severity section

The table shows the distribution of those 135 samples, and the result indicated most suspects were sentenced to 5 or less than 10 years imprisonment (Mode = 3, Valid percent = 38.5)

Figure 4: The trial results from Taiwan

The figure shows the frequency distribution of the 135 Taiwanese suspects in trial results, the most three of sanction are: 52 suspects were sentenced to 5 to less than 10 years imprisonment, secondly, 38 suspects who were sentenced to less than 5 years imprisonment, and 20 suspects were sentenced to minimum of 15 years imprisonment.

Hong Kong

There were 104 suspects found in 100 judgments from the District Court of Hong Kong, and none of the suspects committed other drug related crime, therefore, the 104 suspects will be sampled on this section. The trial results of the suspects are shown below:

Severity in Hong Kong

Valid Percent

Cumulative Percent

1.

Probation

1.9

1.9

2.

0.01-4.99 years

91.3

93.3

3.

5-9.99 years

6.7

100.0

100.0

Mean:

2.0481

Mode:

2.00

S.D.:

0.29162

Table 6: Frequency distribution table for the Hong Kong suspects on the severity section

The table shows the distribution of those 104 samples, and the result indicated that the majority of Hong Kong suspects were sentenced to less than 5 years imprisonment (Mode = 2, Valid percent = 91.3)

Figure 5: The trial results from Hong Kong

The figure shows the frequency distribution of the 104 Hong Kong suspects in trial results, and there are only three categories found from these samples. With sanctions imposed on 95 suspects who were sentenced to less than 5 years imprisonment, secondly, followed by 7 suspects who were sentenced to between 5 and 10 years imprisonment and 2 suspects were sentenced to a training center order.

Macao

113 suspects were found in 100 judgments from the Court of Second Instance of Macao, the same as Hong Kong, with all suspects involved in drug trafficking, hence, all of them will be used as samples on this section. The following table shows the trial results:

Severity in Macao

Valid Percent

Cumulative Percent

1.

Probation

0.9

0.9

2.

0.01-4.99 years

16.8

17.7

3.

5-9.99 years

69.9

87.6

4.

10-14.99 years

12.4

100.0

100.0

Mean:

2.9381

Mode:

3.00

S.D.:

0.5714

Table 7: Frequency distribution table for Macao suspects on the severity section

The table shows the distribution of those 113 samples, and the result indicated that the majority of the suspects were sentenced to between 5 and 10 years imprisonment (Mode = 3, Valid percent = 69.9)

Figure 6: The trial results from Macao.

The figure shows the frequency distribution of the 113 Macao suspects in trial results, there are 79 suspects who were sentenced to between 5 and 10 years imprisonment, it accounts for a higher share of criminal sanctions, and followed by 19 suspects were sentenced to under 5 years imprisonment and 14 suspects were sentenced to between 10 and 15 years imprisonment.

Figure 7: Integration with the four regions on the severity section

The figures are integrated with the results of the four regions in severity, it seems as though Macao and Taiwan has harsher punishment than the regions of China and Hong Kong. The samples of China and Hong Kong concentrate more on the criminal penalty of under 5 years imprisonment, Macao samples concentrate in between 5 and 10 years imprisonment and Taiwan samples generally are more scattered into the three scales of under 5 years imprisonment, between 5 and 10 years imprisonment and more than 15 years imprisonment.

In practice, the samples from the four regions, a case of a Chinese suspect trafficking 8.72 grams of ice and was sentenced to four years imprisonment (around 1 gram with 5.5 months of a prison term); another case of a Taiwan suspects trafficking 6.72 grams of ice and was sentenced to five years imprisonment (around 1 gram with 10.7 months of a prison term); in a Hong Kong case involving 7.85 grams of ice trafficking and the suspect received three years imprisonment (around 1 gram with 4.6 months of a prison term); and a Macao suspect trafficking 8.801 grams of ice and was eventually imprisoned to five years (around 1 gram with 6.8 months of a prison term).

The abovementioned crimes (robbery, drug use, drug possession) which were not counted into the sample cases because the crime nature is not related to the topic of drug trafficking crime, therefore, the trial result independently was calculated for drug trafficking crime only. In the same way, if a suspect has not committed a drug trafficking offence but was involved in the case, the suspects also would not count into samples. In China, five suspects were sentenced for various crimes (two suspects concurrently were sentenced for drug trafficking and drug possession; One suspect concurrently involved with robbery; One suspect concurrently involved with illegal gun possession; One suspects concurrently involved with crime of providing a shelter for others to take drugs). In Taiwan, three suspects committed the crime of transferring drugs to others and have not committed drug trafficking crime at the same time, in addition, 52 suspects concurrently committed more than one crime (e.g. drug trafficking and drug possession, drug trafficking and drug use, drug trafficking and transferring drugs to others). In Hong Kong samples, there were 3 suspects who were charged with more than one crime, such as drug trafficking and drug possession, and drug trafficking and having possession of equipment or an apparatus for drug use. In the Macao samples, 31 suspects were charged with more than one crime, the crimes such as gaining illegal entry, drug use, drug possession or possession of an illegal weapon (stun gun). Based on suspects from the four regions who may be involved in more than one crime or have not committed the crime of drug trafficking, so that the study is just concerned about drug trafficking .

Overall, due to the result of comparing in severity without considering the nature of case in the samples, in addition, the trial results would be affected by aggravating or mitigating circumstance of crime (e.g. plead guilty, recidivism, continuing offence, weight of drugs, involve in violent behavior), therefore, the result of severity only can be a board picture of reflecting this practice result with these samples.

Celerity

The time between a suspect been arrested and having a trial of first instance. This part through the above judgments of each region was collected for useful data (such as the date of police arresting the suspects and the date of the trial of first instance). On the other hand, the period of time will be integrated into twelve scales: 1. Less than 91 days; 2.91-180 days; 3. 181-270 days; 4. 271-360 days; 5. 361-450 days; 6. 451-540 days; 7. 541-630 days; 8. 631-720 days; 9. 721-810 days; 10. 811-900 days; 11.901-990 days; 12.More than 990 days.

China

There are 155 samples that will be used in this section. The below table is shown regarding the samples with the actual date between a suspect been arrested and the trial result of first instance.

Celerity in China

Valid Percent

Cumulative Percent

1.

Less than 91 days

3.9

3.9

2.

91-180 days

42.6

46.5

3.

181-270 days

25.8

72.3

4.

271-360 days

14.2

86.5

5.

361-450 days

7.7

94.2

6.

451-540 days

5.8

100.0

100.0

Mean:

2.97

Mode:

2.00

S.D.:

1.251

Table 8: A distribution table for the Chinese samples on the celerity section

The table shows the distribution of those 155 samples on the celerity section, and the result indicated more than half of suspects need to take 91-270 days (approximate 3 to 9 months) for a trial result from first instance court since they were arrested by police. (Valid percent 42.6% and 25.8%)

Figure 8: The figure show the time between arrested date and trial date in Chinese samples.

The figure shows the frequency distribution of the 155 Chinese suspects that the time between their arrest and trial. It indicated the most three of the criminal processes times are: 66 suspects in 91-180 days, 40 suspects in 181-270 days and 22 suspects in 271-360 days.

Taiwan

There were 135 samples without missing data. The below table shows about the samples with the actual date between the suspect been arrested and the trial result of first instance.

Celerity in Taiwan

Valid Percent

Cumulative Percent

1.

Less than 91 days

1.5

1.5

2.

91-180 days

29.6

31.1

3.

181-270 days

26.7

57.8

4.

271-360 days

17.8

75.6

5.

361-450 days

5.2

80.7

6.

451-540 days

6.7

87.4

7.

541-630 days

5.2

92.6

8.

631-720 days

1.5

94.1

9.

721-810 days

0.7

94.8

10.

811-900 days

2.2

97.0

11.

901-990 days

1.5

98.5

12.

More than 990 days

1.5

100.0

100.0

Mean:

3.89

Mode:

2.00

S.D.:

2.301

Table 9: A distribution table for the Taiwanese samples on the celerity section

The table shows the distribution of those 135 valid samples on the celerity section, and the result indicated the period of 91-180 days (approximate 3 to 6 months, was percent 29.6%) and the period of 181-270 days (approximate 6 to 9 months, was percent 26.7%) which are a normal time for criminal processing procedures in Taiwan

Figure 9: The figure shows the time between arrest date and trial date in Taiwanese samples.

The figure shows the frequency distribution of the 135 Taiwanese suspects for the time between their arrest and trial date. It indicated that the top three criminal processes times were: 40 suspects in 91-180 days, 36 suspects in 181-270 days and 24 suspects in 271-360 days.

Hong Kong

There were 104 samples and 12 samples with missing data (the judgment did not mentioned the date of arrest), which leaves 92 valid samples on this section. The below table shows about the samples with the actual number of days between been arrested and the trial result of first instance.

Celerity in Hong Kong

Valid Percent

Cumulative Percent

2.

91-180 days

92.4

92.4

3.

181-270 days

7.6

100.0

100.0

Mean:

2.08

Mode:

2.00

S.D.:

0.267

Table 10: A distribution table for the Hong Kong samples on the celerity section

The table shows the distribution of those 92 valid samples on the celerity section, and the result indicated most of the suspects need to take 91-180 days (approximate 3 to 6 months) for a trial result from first instance court from the time of their arrest. (Mode = 2, Valid percent = 92.4)

Figure 10: The figure shows the time between date of arrest and trial date in Hong Kong samples.

The figure shows the frequency in distribution of the 92 Hong Kong suspects between their arrest and the trial date. It indicated a high proportion of criminal processing time was needed taking 91-180 days, followed by 181-270 days.

Macao

113 suspects were found in the 100 Macao judgments, and there were 26 samples with a missing date (missing arrest date or trial date), which means 87 suspects will be valid samples on this section. The below table shows the samples with the actual date between who has been arrested and the trial result of first instance.

Celerity in Macao

Valid Percent

Cumulative Percent

3.

181-270 days

9.2

9.2

4.

271-360 days

31.0

40.2

5.

361-450 days

18.4

58.6

6.

451-540 days

18.4

77.0

7.

541-630 days

10.3

87.4

8.

631-720 days

9.2

96.6

9.

721-810 days

1.1

97.7

12.

More than 990 days

2.3

100.0

100.0

Mean:

5.38

Mode:

4.00

S.D.:

1.819

Table 11: A distribution table for the Macao samples on the celerity section

The table shows the distribution of those 87 valid samples on the celerity section, and the result indicated about one third of the suspects need to take 271-360 days (approximate 9 months to 1 year) for a trial result from first instance court from the time of their arrest. (Mode = 4, Valid percent = 31.0)

Figure 11: The figure shows the time between date of arrest and the trial date in Macao samples.

The figure shows the frequency distribution of the 87 Macao suspects between their arrest and the trial date. It indicated the top three criminal processing times were: 27 suspects in 271-360 days, 16 suspects in 361-450 days and 16 suspects in 451-540 days.

Figure 12: Integration with the four regions on the celerity section

The figure reflected Hong Kong (=2.08, S.D.=0.267) and China(=2.97, S.D.=1.251) have a more swift response in criminal processing time. Taiwan (=3.89, S.D.=2.301) should be placed in third position and Macao (=5.38, S.D.=1.819) needs to take more time during a criminal process.

In the study samples, a Chinese suspect was sentenced to 5 years imprisonment for trafficking in methamphetamine (ice), the criminal processing time takes 220 days (7 months or more); a Taiwanese suspect was sentenced to 5 years imprisonment for trafficking ice, the time taken was 292 days (almost 10 months); a Hong Kong suspect was sentenced to 5 years and 3 months imprisonment for trafficking in heroin, the time taken was 158 days (more than 5 months); a Macao suspects was sentenced to 5 years imprisonment for trafficking in cocaine, it took 351 days (more than 11 months ).

Certainty

This section discovered that most suspects were found guilty. The table shows about the situation in each region:

Region

Total suspects

Guilty

Probation /Training center order

China

155

154 (99.4%)

1 (0.6%)

Taiwan

135

129 (95.6%)

6 (4.4%)

Hong Kong

104

102 (98.1%)

2 (1.9%)

Macao

113

112 (99.1%)

1 (0.9%)

Table 12: The table shows the ratio of incarceration rate or the death penalty and other court decision without imprisonment on the certainty section

The high level of certainty because all cases that were submitted to the Courts which must have already been gone over by procurator organs and has a high rate of convictions because of sufficient evidence, otherwise, the cases would be placed on file in procurator organs if no reasonable evidence was available. Therefore, the result only can reflect on the samples while the cases have been to the court for a trial.

From study samples, in China, there is one case of a female suspect who was given probation, due to the role of the person in the case been an accomplice criminal and the case involved a small amount of ice (0.4 grams), therefore the two principal criminals were sentenced to 3 years imprisonment and the suspect received a light punishment with probation. In Taiwan, there were six suspects received probation. One of the suspects was involved in ketamine trafficking, and his friend was sentenced to 3 years and 8 months imprisonment. Due to the circumstance of this case which involved in only a small packet of ketamine (unknown quantity, Class III drug), where the suspect fully cooperated with the police and confessed, so he was placed on probation. But his friend refused to admit his guilt and with a bad attitude since he was arrested, therefore, the judge sentenced him to imprisonment. In Hong Kong, there was a case that a suspect who was sentenced with a training center order, although the suspect was involved in trafficking a large quantity of ketamine (24.18 grams), but because he was just 16 years old, the judge referred him to past similar cases and in view of section 109A of Hong Kong Criminal Procedure Ordinance (Restriction on imprisonment of persons between 16 and 21years of age), he believed that it is not a good way to sentence the suspect with a fixed-term imprisonment, so he decided to give the suspect a training center order, which means the young suspect has to stay in a training center for a period of time for rehabilitation. In Macao, there was a heroin trafficking case which involved two suspects, one of suspects smuggled around 2,500 grams of heroin from Vietnam into Macao by plane, another suspect was responsible for receipt of the drug. Because the evidence was insufficient, thus the receiver was acquitted. But for the smuggler, she was sentenced to 9 years imprisonment.

Chapter 5 - Discussion

In the result of severity of punishments, Taiwan has the harshest punishment towards the suspects who commit a drug trafficking crime, most of suspects were sentenced to between 5 and 10 years imprisonment (=3.09, S.D.=1.15), followed by Macao (=2.93, S.D.=0.57), China (=2.65, S.D.=0.88), and Hong Kong (=2.05, S.D.=0.88).

At the legal level for China, where a criminal behavior involved in smuggling, trafficking, or manufacturing of heroin or methamphetamine (ice) which is over 50 grams, even a large quantity of any kinds of drug that would be enough to punish the criminal with the death penalty, life sentence or more than 15 years of a fixed-term of imprisonment. Taiwan is different than China, the quantity of drug is not a cutting point to distinguish a suspect would be sentenced to the death penalty or a more lenient punishment, it is judged according to the types of drugs (on the basis of addiction, abuse and social harmfulness) as a sentencing guideline, for instance, a criminal involved in smuggling, trafficking, or manufacturing of heroin would be punished with the maximum of the death penalty or a life sentence. If a suspect was involved in methamphetamine trafficking, no matter what quantity of the drug, the suspect would not be giving the severest punishment of the death penalty. In Hong Kong, trafficking, transport or manufacturing of all kinds of controlled drugs would be punished with the severest sanction of a life sentence. In Macao, a criminal behavior involved in smuggling, trafficking, or manufacturing of heroin, ice or ketamine would be punished with a sentencing range of between 3 to 15 years imprisonment.

Looking at it together with all aspects on practice and law, although Chinese law seems much more severe than other regions because over 50 grams of heroin or ice trafficking the offender could be sentenced to the maximum punishment of the death penalty or a life sentence. Nevertheless, from the study samples, there were 13 suspects who committed an ice trafficking offence with more than 50 grams, but the suspects merely were sentenced between 8 and 15 years, this might be a reflection on the severest punishment only use in the situation of the last and absolutely necessity. Taiwan has the harshest punishment towards drug traffickers in the result of severity, because there were 36 suspects (close to one third of the samples) relate to the Class I of the drug - heroin. In the midst of them, there were 13 suspects who were sentenced to more than 15 years imprisonment and 2 suspects were sentenced to a life sentence, which might be one of the reasons to explain why Taiwan has the severest punishment among the four regions. Hong Kong has the most lenient punishment in responding to drug trafficking crime, there were only 7 suspects who were sentenced to between 5 and 10 years imprisonment, for those traffickers, the most serious case where the suspect trafficked 114.42 grams of ketamine and was sentenced to 6 years and 6 months in prison. Macao situation has a high level of severe punishment for drug traffickers and ranks only next to Taiwan, the reason is that the samples contains 23 suspects who committed heroin trafficking by using the way of internal concealment, and the cases involved a large quantity of drug trafficking. Therefore, under the aggravating circumstances of the large quantity and the hidden technique, the suspects were judged and received relatively serious penalties. In those cases, the criminal penalties that the suspects got were between six to ten and half years imprisonment, this is the main reason which makes the Macao situation with a higher level of severe punishment.

Comparing among the regions at the time of a suspect's arrest and to a trial date of first instance, the Chinese criminal procedure takes approximately 91-270 days (91-180 days which accounts for 42.6% and 180-270 days which accounts for 25.8%); Taiwanese criminal procedure likewise takes 91-270 days (91-180 days which accounts for 29.6% and 181-270 days which accounts for 26.7%); Hong Kong's criminal procedure takes 91-180 days (92.4%) and Macao's criminal procedure takes 271-540 days (271-360 days which accounts for 31%; 361-450 days which accounts for 18.4% and 451-540 days which accounts for 18.4%). By looking at the above data for each region, China, Taiwan and Hong Kong also have a shorter criminal processing time than Macao, but Hong Kong should be the shortest one since the most of the samples were distributed in the scale of 91-180 days.

Concerning to the certainty of the samples, China, Hong Kong and Macao are in the same way with a high percentage of incarceration rates (certainty), but China has the highest percentage among the three regions. Taiwan is relatively lower than the other three regions, it has 95.6% of an incarceration rate, which means 4.4% of the suspects have not been found guilty, or even found guilty but the circumstance of the cases are relatively minor, thereby the suspects would not be judged for incarcerating immediately, which gives them a chance to reform themselves.

In a summary of the above three elements, on severity, Taiwan seems to punish severely than the other regions in dealing with drug traffickers, and Hong Kong is the opposite been more lenient than the other three regions; on celerity, Hong Kong has a swift time to respond to a criminal process, instead, Macao has a drawback in this aspect; on certainty, China has a highest incarceration rate and Taiwan relatively holds a lower percentage than the others.

Incidences of drug trafficking cases in the four regions

In the following stage the study will go into the incidence of drug trafficking cases in each of the regions, taking a look at it should mean China would have the lowest incidence of drug trafficking cases because it holds the highest rate of incarcerations, with second place on high efficiency in criminal processing time, and a severe law for the criminals with the maximum sanction of the death penalty.

The incidences of the four regions were respectively collected from the annual reports on drug control in China in 2007-2011, yearbooks of drug crime prevention work in Taiwan in 2007-2011, the fight crime committee reports of Hong Kong in 2007-2011 and work reports of Macao judiciary police in 2007-2011.

The calculation of incidence is the total of the drug trafficking cases in the year divided by popultion for the same year, then multiple it by 100,000. It represents the number of drug trafficking cases which may occur in every 100,000 people.

Figure 13: Integration incidence of drug trafficking cases from the four regions in the years of 2007-2011.

The above figure shows China has the lowest incidence of drug trafficking cases among the regions, followed by Macao, Hong Kong and Taiwan. It makes sense in that the lowest level of drug trafficking cases are in China because it holds a high level of certainty and celerity, which might already produce a certain degree of deterrrence to the potential criminals, so cases are relatively fewer than the others. Instead, Taiwan and Hong Kong are situated in a higher level than China and Macao. Since 2009, the number of drug trafficking cases has increased in Taiwan and has oppositely dropped in Hong Kong. For Macao, the regional situation it was in second place for lowest incidence of drug trafficking cases, perhaps the revised Macao drug law is already sufficient to reach its goal of deterrence since the maximum sentence has been improved from 12 to 15 years. Nevertheless, referring to the antidrug reports of Macao from 2009 to 2011, in spite of the drug trafficking cases been kept at an average level, but the Macao judiciary police pointed out that the arrest rate of drug traffickers accounts for 54% of all offenders of drug-related cases in 2011.In the years of 2009 and 2010, the rates were around 43% ("Annual report of Macao Police Judiciary", 2011, p.24), it represents the pattern of drug trafficking is changing from individual crime act in the past to become collectivize at present since the drug trafficking cases are stay in an average level but the number of offenders arrested have increase. From the study of the Macao samples, there are 12 cases involved with 2 or 3 suspects in a case, their roles are mainly watcher-smuggler (one person keeps close watch on another person during the whole criminal activity, to avoid the crime behavior is terminated because of the origin of the perpetrator or other external environmental factors); smuggler-receiver (one person is responsible for drug smuggling from another region into Macao, another person is responsible for receipt of the drug in Macao and smuggle them out to another region).

Chapter 6 - Conclusion and Limitation

Go back to our study question, the first question has been specified by the chapters of study results and discussion. Undoubtedly, Taiwan holds an attitude of a strike hard policy on the drug traffickers, due to Taiwan having a high recidivism rate of 85% in drug taking (Xu, 2012), which brings about a great increase in demand for drugs thus drug trafficking cases have relatively increased as well. To prevent further deterioration of the scourge of drugs, Taiwan has no alternative but to adopt a strong attitude to implement severe punishment to drug traffickers, besides, the region also strengthened their work on rehabilitation for drug users. For Macao, the region surely need to improve on the time it takes for criminal case processing, otherwise, incidence of cases will increase since the regions is situated in the middle level of severity and certainty, also when criminal processing time is slow that may cause a weakness in relationship between crime and punishment, as a result the punishments may not act as a deterrant for the potential offenders.

On a second question, a region with the severest punishment actually may not have a good result to deter the crime occuring, just as in Taiwan, the region implements a strike hard attitude to the drug traffickers, but the incidence of drug trafficking cases is still at a higher level and even increasing. In addition, the severest punishment of the death penalty also could not effectively prevent the crime in some countries with a high execution rate. On the other hand, the penalty would bring about other issues, such as wrongly ending a persons life when suspect is tortured in order to make a confession. Consequently, severe punishment is not the most effective to deter the potential criminals (general deterrence), it can only say that which surely has reached the goal of a specific deterrence, because the person has been killed and will not commit the crime again, and even a sentence to a criminal with life in prison, which will also reach to the goal of public safety since the offender has been segragated from the population. Overall, from the study results may know that even though a region has the severest punishment for serious criminals, but it may not always be effective.

Looking back to the figure of incidence of drug trafficking cases, although in recent years Macao remained in a lower level, nevertheless, just as what the director of Macao judicairy police Wong Sio-Chak claimed, the pattern of drug trafficking is developing to more secretly and Macao is already showing signs that the situation is worsening as a drug transit hub ("Drug scourge", 2012). Hence, to avoid the situation becoming aggravated and the demands for drugs will increase rapidly, so here are some recommendations for the Macao legislature, judiciary and executive.

Legislature

Improve the term of imprisonment aiming at transnational drug trafficking . In recent years, transnational drug trafficking crime is rampant, as what the Ho Chio Meng argued, Macao has a relatviely lower punishment than other neighboring districts, therefore drug trafficking gangs will select Macao to be one of the drug transit hubs. Although the law has been revised in 2009 and an increase in the upper and lower limits of sentencing, whereas the maximum term of imprisonment in Macao is still have a far distance from other neighboring districts, therefore an improvement with the maximum term of imprisonment up to 20 years is needed, because it would counteract the thought from potential criminals that believe Macao has a lower level of punishment to pay for committing a drug trafficking offence while they are arrested, thereby the law should be increased to make a certain degree of deterrent effect. On the other hand, judges may have more flexibility in discretion when they deal with some serious circumstance of transnational or organized drug trafficking crimes. Referring to the Macao samples, Macao had close to 70% of suspects who were sentenced to 5 to 10 years, even some serious circumstance of drug trafficking cases (e.g. internal concealment) which can only sentence an offender with no more than 15 years imprisonment due to legal restriction and some migitating circumstances. Therefore, the maximum term of imprisonment is required to be raised up to a level closer to the neighboring districts, then Macao would not become a high risk area as it can be if the crime punishments is lowest.

Reduce the daily amount of synthetic drugs for personal use to aim at local trafficking crimes. In recent years, synthetic drugs is very popular among teenagers since its price is low and much more convenient to use. A report from the Central Registration System for Drug Abuse in Macao pointed out that young drug abusers accounted for 48.2% in taking ketamine and 42.2% in taking methamphetamine ("Report from the Central registration system for drug abuse in Macau", 2012), revealed that synthetic drugs have an enormous influence on teenagers, thus the situation should not be ignored and to intensify a major crackdown effort on the sale and use of synthetic drugs. In addition, some teenagers were found smuggling a small amount of synthetic drugs from China into Macao for personal use or even for resale to others to support their drug addiction habits.

In the sentencing of trafficking cases, when a suspect sells or transports less than 5 times of daily use of a drug, the suspect could face an accusation of minor trafficking offence, with the length of sentence is relatively lower and only would be sentenced within 1 to 5 years imprisonment. Therefore drugs such as ketamine, where the daily amount for personal use is 0.6 grams, which means if a suspect smuggles less than 3 grams of ketamine, the person would be sentenced for 1 to 5 years imprisonment if he were proven guilty, even if the trial resulted for less than 3 years imprisonment and the suspects had no serious criminal background, the probation could be applied in this case. Consequently, a daily amount is a key indicator to distinguish how serious or minor the circumstances of a drug trafficking case is.

Avoid teenagers or adult traffickers who have an attitude of exemption from criminal responsibility, and should give a positive signal to the public that violating the law must have a relative criminal punishment. As a result, illegal drugs such as ketamine, with the current daily amount for personal use should consider to reduce one-third down to 0.4 grams, because only strengtening education is insufficient for drug users, it also must increase appropriate punishment to reach a certain level of deterrent effect, accordingly to decrease the possibility on drug users becoming drug traffickers in the further.

Judiciary

Decrease processing time for criminal procedures. In general, a maximum term for suspects to be held in custody before trial. (China -19.74 months; Taiwan - 27 months; Macao - 42 months), This term can reflect on the time for legal procedures to be processed with keeping a suspect in custody for purpose to make the whole criminal procedure fulfilled. The tardiness of the Macao judicial efficiency has been focused and criticized for many years, the main reason been not enough judges and the criminal procedures is far too complicated. Due to the economic boom in Macao the crime rate has also increased in the past ten years, meanwhile, because of the insufficant number of judges, with this leading to a backlog of criminal cases each year, so an increase in the number of judges is a one of method to solve this problem. In addition, the revision of laws should also be looked at. The current criminal procedure code has been in use for sixteen years, some procedures need revising, such as to reduce the time of investigation stage or abolish the unnecessary stage of the preliminary inquiry system (or limit this to only use in some serious crimes and the suspects to be sentenced to ten or more years imprisonment). Through optimize the above criminal procedures to bring down the processing time, which may help to intensify the efficiency of celerity in improving the deterrent effect.

Executive

Police department

Strengthen the exchange of information with the govenrments in the drug source area, such as Afghanistan, Myanmar, Peru. Because trafficking routes will constantly change in order to avoid interception by police in different regions, based on that, increase communication from source areas and neighboring districts this can effectively discourage transnational drug trafficking crimes. In addition, police should increase patrol in high-risk areas (disco and pubs) to prevent crime from happening. Moreover, introduce an informer plan, to encourage drug abusers or residents to give information to police in the crackdown on drug trafficking gangs or drug dens, which in return for an informant fee. This approach really would help the police to solve crime and decrease the dark figure of drug trafficking.

Social Welfare Bureau

Proliferate the harmfulness of taking drugs, encourage teenagers face up to attend detoxification and strengthen psychological health education in order to stay away from drugs. Because teenagers are at a stage of psychological development, they are vulnerable to fall into a wrong path by the influence from their peers, so strengthen teenager education on perniciousness of drugs is needed. On the other hand, encourage parents to report drug abuse behavior from their child to the bureau, for the purpose of social workers could intervene at an early stage to prevent further harm to teenagers. When drug or potential drug users are been curtailed a decline or controlling, then the drug trafficking crimes would also have a certain degree of decline or restraint because of the principal of supply and demand. Also, the teenagers if they could stay away from drugs, they will not further become as a tool for helping drug dealers to traffic illegal drugs to others, in order to earning money to support their drug taking habit.

In a summary, criminal punishment and criminal procedures have to appropriate adjustment to prevent for future deterioration and at the same time, reduce consumers on controlled drugs and strengthen the opportunity of interception on drug transport, then drug trafficking crimes would be controlled or eradicated.

Limitation

With online access to the criminal judgments limited by timeliness, confidentiality and inhomogeneity, hence the samples were collected by a method of non-random sampling and it cannot rule out of the possibility of these samples that may concentrate in a certain locality.

On the other hand, some Macao judgments are written in Portuguese, where I need someone to help me translate about the content of those judgments, therefore, this part was done in collaboration with me and someone else. In addition, some courts in the regions are not public or have limited access for the judgments because of confidentiality, such as Macao, the court of first instance in Macao has no public the judgments. Therefore, merely through the content of judgments from the Court of Second Instance to find out the data of first instance (such as trial date and trial result from first instance). Although the study goes as far as to reduce bias from comparison with different level courts (just by extracting the information of first instance from content of the judgments), but it could not avoid some samples to lean towards serious circumstances of drug trafficking crime, such as with large quantity of drugs in trafficking, organized or transnational drug trafficking crimes. All of drug trafficking cases in Macao samples come from appellate cases, due to Court of Second Instance of Macao who is responsible for the trial of criminal cases at the appeal stage, hence all cases in Macao samples must contain at least one of appellors who did not agree with the trial result from first instance or the appellor entreated for a lower term of imprisonment. Nonetheless, the comparison with the four regions can also give readers a broad picture on the response of criminal justice with drug trafficking crimes and the difference between each of regions as well.

On the other hand, due to the Department of Justice of Hong Kong, the Prosecutors Office of Taiwan, the Public Security Department of China and the Macao Prosecution Office do not have open access to indictments, consequently, the samples do not count in some cases with minor circumstances or lack of adequate evidence and they were placed on file in the prosecution department. As a result, the samples only count for the cases which have been sent to the courts for trial.

In spite of this study I have already collected 100 judgments from each region respectively, but there are still some missing data from the samples while comparing between the four regions on celerity section.

Future study

For further study, there are two aspects I would like to make recommendations.

First, the sample size respectively to improve more than 500 for each region, it could reduce a certain degree of systematic error. Furthermore, if the sample size is large, the researcher can go through systematic random sampling to select the study samples, which could also reduce representative error and increase accuracy and reliability to the result.

On the other hand, to consider by adding a questionnaire survey into a study, for more understanding on attitudes from some specialists (e.g. legislators, judges or police officers), by this outcome you may know that if there are any other ways of preventing drug trafficking crime in practical work, having any difficulties in amending the current laws with severer or lesser punishment, and any difficulties in tracing down the crime and intercepting the illegal drug smuggling into Macao.

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