The Purposive Interpretation of Substantive Conditions for Parole
The active use of the parole system to strengthen the interface between pris-on sentences and community corrections and to give full play to the role of social encounters in preventing recidivism has become an unstoppable trend of development compatible with the phi-losophy of modern criminal policy.Facing the problem of the low parole rate in China,this pa-per aims to create a new situation of the application of the parole system in the aspect of the in-terpretation theory of criminal law by giving a purposive interpretation of the substantive condi-tions of parole.It first analyzes the due purpose of the parole system in the current criminal gov-ernance system and puts forward the monism of prevention of recidivism.Based on that,it clari-fies the essence of parole and reveals the potential logical paradox in the dilemma of parole prac-tice.Then,in light of the current legal provisions on the application of parole,explain the sub-stantive conditions of parole in a way that conforms with the monism of prevention of recidivism from the perspectives of judging elements and judging criteria.It argues that the prevention of recidivism should be identified as the paramount purpose of the parole system,while other func-tions and advantages of parole merely serve the realization of this value or as ancillary benefits in the process of realizing this value.The essence of parole is to manage the risk of recidivism by actively bridging the two major measures of imprisonment and community correction.Instead of focusing only on the recidivism prevention results in the prison sentence phase,the possible re-cidivism prevention effects of community corrections after parole should be taken into account as well.To break the paradox of parole and overcome the practical dilemma of the low parole rate,all offenders with correctional suitability should be treated as subjects of parole.Concerning the judging elements of the substantive conditions of parole,requirements of"genuine repentance"and"impact on the community in which they live"should be minimized,i.e.,as long as the offender shows through the serving of the sentence that he or she does not actively seek to re-commit a crime and there is no obvious evidence of a detrimental effect on or safety threat to the community and victim(s)after release,there should be a margin for parole.Concerning the judging criteria of the substantive conditions of parole,"no risk of re-offending"should be in-terpreted as"predicting no re-offending risk"and"utilizing community corrections resources to avoid re-offending risk",and the theory of correctional suitability should be applied to clarify its meaning.Correctional suitability is achieved and the substantive conditions for parole are met when community correction is more suitable for achieving the goal of preventing recidivism(ap-propriateness)and more effective in preventing recidivism than continued imprisonment(neces-sity),and not significantly disproportionate to the offender's culpability(proportionality).
NETL
NSTL
万方数据
维普
