Ce mémoire aborde la question des fondements moraux de la défense de provocation. Les concepts actuellement utilisés pour analyser ces fondements sont habituellement ceux de justification et d'excuse. À notre avis, la défense de provocation doit plutôt être interprétée comme une articulation particulière des principes gouvernant la détermination de la peine. Les deux premiers chapitres seront consacrés respectivement au concept de justification et d'excuse, et auront pour objet d'écarter leur paradigme de l'analyse des fondements de la défense de provocation. Le troisième chapitre montre comment il est possible de conceptualiser le moyen de défense comme une articulation des principes de détermination de la peine. / The present work addresses the question of the moral basis for the defense of provocation. The concepts used today to analyze these bases are usually those of justification and excuse. It is suggested that the defense of provocation should rather be interpreted as a particular articulation of the principles governing the sentencing. The first two chapters cover, respectively, the concepts of justification and excuse, and aim to refute the paradigms of analysis attached to each concept regarding the basis of the defense of provocation. The third chapter demonstrates that it is quite easily possible to conceptualize the defense of provocation as an articulation of the sentencing principles.

Ce mémoire aborde la question des fondements moraux de la défense de provocation. Les concepts actuellement utilisés pour analyser ces fondements sont habituellement ceux de justification et d'excuse. À notre avis, la défense de provocation doit plutôt être interprétée comme une articulation particulière des principes gouvernant la détermination de la peine. Les deux premiers chapitres seront consacrés respectivement au concept de justification et d'excuse, et auront pour objet d'écarter leur paradigme de l'analyse des fondements de la défense de provocation. Le troisième chapitre montre comment il est possible de conceptualiser le moyen de défense comme une articulation des principes de détermination de la peine. / The present work addresses the question of the moral basis for the defense of provocation. The concepts used today to analyze these bases are usually those of justification and excuse. It is suggested that the defense of provocation should rather be interpreted as a particular articulation of the principles governing the sentencing. The first two chapters cover, respectively, the concepts of justification and excuse, and aim to refute the paradigms of analysis attached to each concept regarding the basis of the defense of provocation. The third chapter demonstrates that it is quite easily possible to conceptualize the defense of provocation as an articulation of the sentencing principles.

A personalidade do agente está relacionada entre os critérios de individualização judicial da pena previstos no artigo 59 do Código Penal brasileiro o qual, tal como muitos outros estatutos repressivos penais, privilegiou algumas das principais ideias defendidas pela Escola da Criminologia Positivista italiana e da Defesa Social. No curso da história da legislação penal brasileira é possível observar como a subjetividade do réu passou a ganhar importância progressivamente, chegando a tornar-se, em determinado momento, o principal foco de atenção. Influenciaram esse processo de subjetivação da lei penal outros ramos do conhecimento, em especial, a Psicologia, a Psiquiatria e a Antropologia Criminal que, com a irrupção da Ciência Positivista experimentalista acabaram ganharam legitimidade para influenciar diretamente as Ciências Jurídicas, inaugurando, consequentemente, uma nova fase na história do Direito Penal. Conceitos e institutos típicos dessa fase foram assimilados pela nossa legislação e amplamente defendidos por autores brasileiros do início do século XX. Nossa jurisprudência nacional, da mesma forma, viu-se diretamente influenciada pela tendência subjetivista então inaugurada e assim permanece, em certa medida, até os tempos atuais. O presente trabalho busca a origem dessas influências, analisa o caminho que ela percorreu em nossa legislação e doutrina penais e visa buscar uma solução garantista e compatível com um Estado Democrático de Direito para o espinhoso problema do critério da personalidade: conceito poroso e de duvidosa possibilidade de aferição. Para tanto, fundamenta-se nos principais modelos teóricos de determinação da pena que vêm se desenvolvendo na Alemanha e na Espanha com a finalidade de esclarecer qual o papel dogmático dos critérios subjetivos no processo de individualização judicial da sanção. Finalmente, procura analisar o conceito de personalidade para a doutrina brasileira e para a jurisprudência, apontando as principais deficiências e dificuldades que este critério acarreta para o operador do Direito, propondo, ao final, uma interpretação possível para aquele conceito. / The personality of the defendant is listed among the criteria for penalty individualizing provided for article 59 of the Brazilian Penal Code which, like many other repressive penal statutes is focused on some of the main ideas defended by the Italian school of Positivist Criminology and Social protection school. In the course of the history of Brazilian criminal law is possible to observe how the subjectivity of the defendant went on to gain gradually importance, going so far as to become, at given time, the main focus of attention. Other fields of knowledge, influenced this process of subjectivation, in particular, Psychology, Psychiatry and Criminal Anthropology of the criminal law. With the irruption of the Positivist sciences they gained legitimacy to directly influence the legal sciences, inaugurating, consequently, a new phase of criminal law. Concepts and typical institutes of this phase were assimilated by our legislation and widely advocated by brazilian authors of the early 20th century. Our national case-law, likewise, was directly influenced by the subjectivist trend then opened and remains, to some extent, up to the present time. The present paper seeks the origin of these influences, analyzes the path that it traveled in our legislation and penal doctrine and aims to seek a solution conformable to a democratic State of law to the thorny problem of the criterion of personality: a porous concept and of doubtful possibility of admeasurement. To this end, is based on the main theoretical models of penalty determination that have been developing in Germany and in Spain in order to clarify what dogmatic role the subjective criteria play in the process of individualization of judicial sanction. Finally, it seeks to analyze the concept of personality to the Brazilian doctrine and jurisprudence, pointing the main shortcomings and difficulties that entails for the law´s operators, proposing, at the end, a possible interpretation to that concept.

Esta dissertação discute três problemas dos estudos do judiciário: a discriminação de grupos sociais com impacto no tempo de sentença, nas condenações e no regime da pena; os incentivos ao recurso; e a influência de posições ideológicas dos juízes em suas decisões. Analisando os processos penais distribuídos na comarca de São Paulo em 2002, o trabalho conclui que não há padrões de discriminações por características sociais dos réus, mas sim variações decorrentes de possibilidades processuais, e uma das variáveis importantes para predizer o recurso é o regime da pena. Por fim, faz um estudo qualitativo com um pequeno grupo de juízes, que aponta uma pequena influência da posição ideológica no resultado dos processos e no incentivo ao recurso das sentenças. / This dissertation discusses three issues of judicial studies: the discrimination of social groups with an impact in the time of sentence, condemnations and disciplinary rules; stimulation to appeal; and the influence of the judge\'s ideological position on their decisions. Analyzing the penal processes of 2002 in the judicial districts of São Paulo, we conclude that defendants are not distinguished by their social backgrounds, but by variations resulting from processual possibilities, and one of the important variables for predicting appeals is the disciplinary rules. At last, we make a qualitative study with a small group of judges, indicating a tenuous influence of ideological position on the result of processes and the appealing of sentences.

Previous research has found significant effects of gender, race, and age on sentencing decisions made by state and local court judges (e.g. Johnson, 2003; Mustard, 2001; Steffensmeier, Ulmer, & Kramer, 1998). The current study used criminal district court data from two counties in western North Carolina to further research of the effects of the aforementioned variables on sentencing. Using knowledge acquired from past studies, the hypotheses for the current study asserted that younger offenders, male offenders, and nonwhite offenders would be more likely to be found guilty of their offense and receive fines than their respective offender counterparts. The results of the binary regression analysis models did not support many of the proposed hypotheses; however, significant relationships unsupervised probation, supervised probation, and active time were found with defendants who used privately retained counsel. Implications are discussed, as well as limitations and research recommendations for the future.

abstract: In this dissertation, I examine the treatment and sentencing of American Indian defendants. This work contributes to research on cumulative disadvantage and the role race and social context play to influence federal sentencing outcomes. Disparities in federal sentencing for racial and ethnic minorities are an important concern to scholars and policy makers. Literature suggests that blacks and Latinos are sentenced more harshly than similarly situated white offenders. These findings are concerning because they suggest that minorities are treated unfairly by the criminal justice system, questions the legitimacy of how offenders are processed and treated, and defendants of color who are meted out tougher punishments face substantial social and economic difficulties thereafter. Although the black-white and Latino-white disparities have been identified and highlighted, less is known about whether disparities extend to other minority groups, and consequently little is known about the treatment of these neglected groups. I investigate whether American Indian defendants experience cumulative disadvantages at multiple decision points, disadvantage over time, and the effect of social context on drawing on American Indian disadvantage, the focal concerns and minority threat perspectives. The focal concerns perspective is used to develop hypotheses about how American Indian defendants will receive harsher punishments at multiple decision points. I also use this perspective to predict that American Indian disadvantages will increase over time. Lastly, I examine social context and its effect on punishment decisions for American Indians using the minority threat perspective. I hypothesize that 
social context impacts how American Indian defendants are sentenced at the federal level. Data come from the Federal Justice Statistics Program Data Series, the US Census, and the Uniform Crime Report, with a focus on data gathered from the Administrative Office of the United States Courts and the United States Sentencing Commission. A range of modeling strategies are used to test the hypotheses including multinomial logistic regression, ordinary least squares regression, and multilevel modeling. The results suggest that cumulative disadvantages against American Indian defendants is pronounced, American Indian disparity over time is significant for certain outcomes, and social context plays a limited role in American Indian sentencing disadvantage. / Dissertation/Thesis / Doctoral Dissertation Criminology and Criminal Justice 2019

The financial costs of U.S. federal health care fraud continue to increase, and as health care payments due to fraudulent claims increase, the portion of The Medicare Trust Fund available to pay for legitimate health care expenses decreases. Prosecution is one of several fraud management life cycle components that contributes to and can alter the course of increasing health care fraud; however, despite this recognition, there is a gap in the literature regarding the consistency of prosecution for federal health care fraud across different judicial districts. The purpose of this qualitative, exploratory multiple case study was to explore the federal sentencing consistency across 6 judicial districts in Georgia and Florida during 2011 and 2012 using Wilhelm's Fraud Management Life Cycle as the theoretical lens. Data consisted of publicly available records of 147 terminated federal cases in Georgia or Florida from 2011 and 2012 involving prosecutions for health care-related fraud. These data were inductively coded and analyzed using a content analysis procedure. Findings indicated physical and monetary sentencing inconsistencies when comparing the sentence delivered for similar federal health care fraud cases across judicial jurisdictions. This study promotes positive social change by demonstrating inconsistencies in federal health care sentencing and understanding that consistent sentencing will lead to greater deterrence. Prosecutors and judges will benefit from this knowledge in making more consistent sentencing decisions related to federal fraudulent health care payments.

This study focuses on the influence of mitigating circumstances on the sentencing outcome before and after the McKoy (1990) decision. In McKoy (1990) the Supreme Court decided that the jurors did not have to find mitigating circumstances unanimously. Results are reported based on a sample of North Carolina first-degree murder cases where the state sought the death penalty. Logistic regression is used to determine the importance of mitigating circumstances as predictors of jury decision-making in North Carolina, controlling for the variety of other factors that influence that decision. The descriptive statistics show that the average number of mitigating circumstances submitted and accepted had doubled in the post-McKoy cases. At the same time, the number of aggravating circumstances presented and submitted stayed about the same. The analysis then moved to the consideration of the impact of mitigating circumstances, and whether there had been a change between the two eras. Separate logistic regression analysis revealed that there had indeed been a shift in the effects of aggravation and mitigation, but no in the manner that might have been anticipated, Specifically, in the post-McKoy era, mitigating circumstances had a diminished impact on the probability of a death sentence while, conversely, aggravating circumstances carried an increased impact.

This Thesis attempts to develop an understanding of the problems that Aboriginal offenders encounter in the Canadian justice system and examines why Euro-Canadian justice philosophy and mechanisms are not appropriate or effective. It is often very difficult for non-Aboriginal persons to understand that there is a difference between being Aboriginal and non-Aboriginal. This difference impacts offenders as they interact with the criminal justice system.<p> The sentencing circle is one process by which the sentencing judge can obtain a clearer picture of the offender and consider sentencing options other than the `usual punishment'. It is an opportunity for the offender to address the consequences of his or her actions and to seek the help of community and family. It is also an opportunity for the victim to be heard and to seek redress.<p> Current sentencing practices and theory are briefly examined as they bear on sentencing circles. Issues which have arisen as a result of the implementation of sentencing circles in Saskatchewan are examined (where possible, within the context of Saskatchewan case law).<p> The use of sentencing circles has raised questions about the current approach to sentencing as contrasted with the restorative approach of the circle. The restorative approach to justice is a recurring theme throughout the Thesis. The different approach of the sentencing circle to the offender and the involvement of the community in the sentencing process have raised questions about incarcerating offenders, about disparity in sentences, about the protection of the public, and about the role of the community, the family and victims in the sentencing and rehabilitative processes. These issues are examined.<p> This Thesis has also attempted to draw some conclusions about the larger issue of where sentencing circles may be leading the justice system and the Canadian public. Is the sentencing circle merely an innovation within the justice system that can provide a more effective sentencing mechanism than the sentencing hearing? Or, is the sentencing circle leading Aboriginal peoples towards their own justice systems?<p> The sentencing circle has forced an examination of current sentencing practices. This, in turn, has opened a window of opportunity to do some serious re-evaluation of the existing sentencing process.

This Thesis attempts to develop an understanding of the problems that Aboriginal offenders encounter in the Canadian justice system and examines why Euro-Canadian justice philosophy and mechanisms are not appropriate or effective. It is often very difficult for non-Aboriginal persons to understand that there is a difference between being Aboriginal and non-Aboriginal. This difference impacts offenders as they interact with the criminal justice system.<p> The sentencing circle is one process by which the sentencing judge can obtain a clearer picture of the offender and consider sentencing options other than the `usual punishment'. It is an opportunity for the offender to address the consequences of his or her actions and to seek the help of community and family. It is also an opportunity for the victim to be heard and to seek redress.<p> Current sentencing practices and theory are briefly examined as they bear on sentencing circles. Issues which have arisen as a result of the implementation of sentencing circles in Saskatchewan are examined (where possible, within the context of Saskatchewan case law).<p> The use of sentencing circles has raised questions about the current approach to sentencing as contrasted with the restorative approach of the circle. The restorative approach to justice is a recurring theme throughout the Thesis. The different approach of the sentencing circle to the offender and the involvement of the community in the sentencing process have raised questions about incarcerating offenders, about disparity in sentences, about the protection of the public, and about the role of the community, the family and victims in the sentencing and rehabilitative processes. These issues are examined.<p> This Thesis has also attempted to draw some conclusions about the larger issue of where sentencing circles may be leading the justice system and the Canadian public. Is the sentencing circle merely an innovation within the justice system that can provide a more effective sentencing mechanism than the sentencing hearing? Or, is the sentencing circle leading Aboriginal peoples towards their own justice systems?<p> The sentencing circle has forced an examination of current sentencing practices. This, in turn, has opened a window of opportunity to do some serious re-evaluation of the existing sentencing process.