Penalty Provisions Research Articles

Societal threat, authoritarianism, conservatism, and U.S. state death penalty sentencing (1977-2004).

On the basis of K. Stenner's (2005) authoritarian dynamic theory, it was hypothesized that the number of death sentences and executions would be higher in more threatened conservative states than in less threatened conservative states, and would be lower in more threatened liberal states than in less threatened liberal states. Threat was based on state homicide rate, violent crime rate, and non-White percentage of population. Conservatism was based on state voter ideological identification, Democratic and Republican Party elite liberalism-conservatism, policy liberalism-conservatism, religious fundamentalism, degree of economic freedom, and 2004 presidential election results. For 1977-2004, with controls for state population and years with a death penalty provision, the interactive hypothesis received consistent support using the state conservatism composite and voter ideological identification alone. As well, state conservatism was related to death penalties and executions, but state threat was not. The temporal stability of the findings was demonstrated with a split-half internal replication using the periods 1977-1990 and 1991-2004. The interactive hypothesis and the results also are discussed in the context of other threat-authoritarianism theories and terror management theory.

The death penalty and society in contemporary China

Why are death penalty provisions, convictions and executions so prevalent in China? This article aims to answer this question by way of defining China as a 'state power' based society characterized by a socialist social system. The prevalence of the death penalty in China can be explained in terms of the following factors: first, the death penalty is a political issue of state power; second, the death penalty is a crucial part of criminal policy in a 'state power'-based society; third, the issue of whether to retain the death penalty is a political rather than a legal matter. The Chinese government has improved its death penalty system in recent years; however, the situation has not fundamentally changed. The future of death penalty policy and practice in China will depend primarily on legal rather than democratic developments. The death penalty serves as a focal point that can help illuminate issues of punishment and society in East Asia. Accordingly, this article will elaborate my theories regarding the death penalty in contemporary China, with the primary intent of elucidating the relationship between punishment and society in China.

The United Kingdom Identity Cards Act 2006 Civil or Criminal?

After much controversy and debate, the United Kingdom Parliament passed the Identity Cards Act in March 2006. The new national identity registration scheme established under the legislation will be in operation in 2 years. Initially the scheme will not be generally compulsory, though the intention is eventually to make it mandatory. The Act uses a mix of civil penalty and offence provisions as part of its enforcement regime. This article considers the approach of the legislation, particularly the practical implications of authentication and verification of identity under the scheme and the potential impact on the effectiveness of the enforcement regime, having regard to the right against self-incrimination under the Human Rights Act 1988 (UK) and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and the common law privilege against self-incrimination.

Regulating Directors' Duties: How Effective are the Civil Penalty Sanctions in the Australian Corporations Law?

The research project examines how the Australian Securities and Investments Commission (ASIC) uses civil penalties as an enforcement tool against company directors. It identifies and critically evaluates the factors which impact upon ASIC enforcement decisions regarding civil penalties. The methodology employed for the research involved collection of data about the use of civil penalties and a series of semi-structured interviews with senior ASIC enforcement personnel from regional offices around Australia. Those interviewed included: National Director, Enforcement; Regional Commissioner; Regional Director, Enforcement; Regional Assistant Director, Enforcement; and Regional General Counsel. Civil penalties were introduced by the Federal Parliament in 1993 with the expectation that they would be a significant enforcement tool. On 1 July 1998, the Federal Parliament extended the application of civil penalties under the Corporations Law to a number of additional statutory provisions including provisions involving share capital transactions and the management of managed investment schemes. However, our research has found that ASIC has commenced only 14 civil penalty applications relating to 10 case situations since civil penalties were introduced in 1993. The research identifies a number of reasons for this: 1. Civil penalties are seen by many of those interviewed as being inflexible and having limited utility as an enforcement option. 2. There are a number of alternative remedies which, from ASIC's point of view, appear to be more viable than civil penalties. In particular, there are injunctions which provide a real remedy as well as section 600 of the Corporations Law which allows ASIC, in certain circumstances, to ban a person from managing a corporation. Section 600 is an effective remedy according to many of those who we interviewed as it does not require ASIC to bring court proceedings although the person banned may challenge the ASIC banning order in court. In order to ban a person from managing a corporation for breach of a civil penalty provision, ASIC must bring court proceedings. 3. A number of those interviewed expressed reservations about delays associated with use of the courts in the area of enforcement and, in addition, some of the difficulties of interpretation that have resulted from certain judgments of courts. These uncertainties in the interpretation of basic statutory provisions regulating directors' duties (which are civil penalty provisions) reinforce the trend to use alternative enforcement mechanisms. 4. There was some indication that many of those in the enforcement section of ASIC come from a criminal law background and therefore have a tendency to prefer criminal actions rather than civil penalties. The suggestion was that this would change over time as the personnel of ASIC changed. 5. Those interviewed indicated that the requirement to liaise with the Director of Public Prosecutions (DPP) over significant enforcement matters adds another level of complexity to the decision-making process. The consequences resulting from the requirement to liaise with the DPP was a recurring theme in the interviews. These consequences include (i) the requirement means that the DPP effectively has a veto over the use of civil penalties; (ii) the need for the DPP to satisfy itself that there is no criminal element in a matter may result in delay that can undercut the opportunity for a civil penalty action; and (iii) ASIC and the DPP have different enforcement objectives. The role of the DPP is to prosecute criminal breaches of the law while ASIC has broader objectives which include using civil remedies. These different objectives can impact upon the likelihood of civil penalties being pursued. 6. Unclear drafting of the civil penalty provisions, particularly regarding the elements that must be proved to satisfy the court that a breach of a civil penalty provision has occurred, limits the use of civil penalties. Where the same conduct may breach both a civil penalty provision and a provision in a State Criminal Code, there is an incentive to frame the legal action as a breach of the Criminal Code because of the uncertainty surrounding the civil penalty provisions.

Massachusetts Predatory Home Loan Practices Act and Other Amendments to Massachusetts Law

In August 2004, Massachusetts enacted the Predatory Home Loan Practices Act, replacing previous regulations applicable to high-cost home mortgages. With poorly defined provisions and indeterminate assignee liability, the Act follows in the footsteps of the ill-conceived anti-predatory lending laws in Georgia and New Jersey, which upended the secondary mortgage markets in those states. Although it is too soon to tell whether the Massachusetts Act will prompt a similar response, the Act will certainly have a major impact on the structured finance industry. The Act significantly expands the list of penalty provisions and alters the scope of several substantive prohibitions contained in previous regulations, including the limitations on lending without regard to repayment ability, financing points and fees, prepayment penalties, modification and deferral fees, and mandatory arbitration clauses. Any person who purchases or is otherwise assigned a Massachusetts high-cost home mortgage loan will be subject to this legislation.

State Executions, Deterrence, and the Incidence of Murder

This study employs a panel of U.S. state-level data over the years 1978–1997 to estimate the deterrent effect of capital punishment. Particular attention is paid to problems of endogeneity bias arising from the non-random assignment of death penalty laws across states and a simultaneous relationship between murders and the deterrence probabilities. The primary innovation of the analysis lies in the estimation of a simultaneous equations system whose identification is based upon the employment of instrumental variables motivated by the theory of public choice. The estimation results suggest that structural estimates of the deterrent effect of capital punishment are likely to be downward biased due to the influence of simultaneity. Correcting for simultaneity, the estimates imply that a state execution deters approximately fourteen murders per year on average. Finally, the results also suggest that the announcement effect of capital punishment, as opposed to the existence of a death penalty provision, is the mechanism actually driving the deterrent effect associated with state executions.

Complying with Australian and PATA Transfer Pricing Documentation Rules - A Sisyphean Task?

With the increase in international trade, revenue authorities are taking an aggressive approach to transfer pricing. This article argues that Australian documentation requirements are particularly cumbersome and can give rise to unreasonable application of penalty provisions, given the lack of clarity in the rules. It recommends improved rule clarity and a ‘one-strike’ safe harbor. Australia has joined with the United States, Canada and Japan to produce a multilateral transfer pricing documentation package in response to concerns that the documentation burden is excessive. This article argues that although the package is a good first step, it does not yet meet its goals of certainty, flexibility and cost-saving.

A Primer on the Criminal Penalty Provisions of the Native American Graves Protection and Repatriation Act

A Primer on the Criminal Penalty Provisions of the Native American Graves Protection and Repatriation Act

Contracting for public bus transit: do techniques employed make a difference in service outcome?

The evidence suggests deductions for non-performance and competitive solicitation methods are key determinants of contractor performance. A penalty provision is strongly associated with an increase in unit cost, while a competitive solicitation method reduces unit cost. The evidence is inconclusive for fixed price contract and contract length. The findings support the idea that contracting techniques impact contractor performance. The potential for cost savings may not be fully realized unless techniques that focus on competitive contracting are employed. Future research that addresses contract design factors for other services in other settings will provide information to help policy makers choose among the numerous contract design options.

When Limited Partners Default

As equity markets continue to struggle, the prospect of having limited partners default on their capital contributions becomes more of a possibility. Many venture capitalists are quite concerned about certain portions of their partnership agreements, such as the flexibility allowed the general partner to make investments, but far less concerned about the penalty provisions in caseof default. This article outlines possible courses of action and discusses which ones make the most sense in different circumstances.

Algorithms of Optimal Supply of Resources to a Group of Projects (Stochastic Networks)

Several concurrently realized i>PERT-like network projects with random lengths of the their activities were considered. Each activity consumes several kinds of resources of fixed powers, all resources being reproducible in the course of their service. For each project, the schedule date and the admissible confidence probability of timely completion of the project were defined. The initial instants of realization of all projects, the required total power of each of the reproducible resources (for each project), the delivery schedule of rare reproducible resources that are not at the disposal of the project management system, and the schedule of beginning all activities (for each project) were determined. The minimal nonoperational costs (penalty provisions for failure to execute the project in time, fines for idling of the rare external resources, costs of resource lease, i>et al.,) were used as the target function.

Social Control and Dogs: A Sociohistorical Analysis

Between the 1991 Gulf War and the 1996 bombing at the Atlanta Olympics Centennial Park, the public is becoming increasingly aware of the potential dangers of public spaces at home and abroad. Federal efforts designed to deal with the threat of terrorism and to quell fear have included the 1996 Anti-Terrorism Act with its provisions for severe penalties for terrorism along with funds for the increased use of high-tech surveillance equipment. At the local level including courts, hospitals, and schools, physical barriers and bomb- and weapon-detecting monitors have become commonplace. Dogs often are overlooked in the efforts to protect public space. This article addresses the history of dogs as an agent of social control and offers suggestions for further research.

Intertemporal Framing Issues in Management Compensation

This study investigates whether manager–decision-makers’ expectations about incentive compensation and environmental uncertainty influence investment decisions through their effect on the decision maker's implied discount rate. This is, to our knowledge, a first attempt to manipulate implicit risk, the risk to future payoffs associated with environmental uncertainty. Both these factors and waiting time are expected to influence implied discount rates. The study investigates discount rate influences under both bonus and penalty incentive plans. The hypothetical bonuses are year-end cash bonuses; the penalties are opportunity costs. Responses were analyzed using both analysis of variance and regression. The regression analysis was used to separate time discounting from the other factors affecting implied discount rates. Subjects’ responses to proposed changes in the timing of cash bonuses were dramatic when an expanding economy was suggested. However, subjects’ responses to penalty provisions were less dramatic than corresponding responses to the out-of-pocket negative outcomes studied in previous research. In some situations, penalty provisions may be more effective for inducing investment than bonus provisions. In addition, the results suggest that efforts to change management decision making using deferred compensation may require more deferred compensation than time discounting alone would require.

Construction

This paper, written for the ASCE Manual of Professional Practice for Quality in the Constructed Project, Volume II , presents an overview of the construction industry. The paper is organized in accordance with the recommendations of the Task Committee on Technical Supplements to the Guide. It provides a brief history of the development of the construction industry in the United States and its role in today's society. It describes how the industry is presently organized and functions and the types of construction companies. The paper discusses the various forms of construction contracts including: lump sum, unit price, guaranteed maximum price, cost reimbursable, construction management, and design construct. Important contract provisions are reviewed including: bonding, insurance and indemnification, changed conditions, change orders, schedule, liquidated damages, bonus and penalty provisions, payment terms and retainage, subcontracting, partnering and alternate dispute resolution. The writer explains how construction companies are organized, both in the main office and the field. The elements of construction engineering practice are explained and the qualifications for engineers in construction are presented. The relationships with other civil engineering disciplines and design professionals are discussed.

Liability of Directors for Corporate Insolvency - The New Reforms

Under Part 4 of the Corporate Law Reform Act 1992, sections 592 and 593 of the Corporations Law are replaced by sections 588G, 588U and 588Y. Both section 592 and its replacement section 588G, impose liability on a director whose company has traded whilst insolvent. The new provisions, like so many which have been introduced, are both complex and lengthy. Where previously there were two sections there are now fourteen replacements. The new section 588G is found in Divisions 3 and 4 of Part 5.7 B and interlocks with other amendments, including those establishing civil penalty provisions contained in Part 9.4 B. This part entitled ’Recovering Property or Compensation for the Benefit of Creditors and Insolvent Companies’, includes matters such as ’voidable transactions’ and ’the liability of a holding company for insolvent trading by a subsidiary’. In this article the new insolvent trading provisions are analysed with particular emphasis being placed on the differences between the old section 592 and the new sections. The cases dealing with section 592 will also be considered in order to determine how the new sections will be interpreted and what the legal position will be.

Effectiveness of OSHA sanctions in influencing employer behavior: Single and multi-period decision models

This paper examines, from a decision theory perspective, the effects of sanctions for first instance violations of Occupational Safety and Health Act standards. Current OSHA penalty provisions and administration are discussed. Single and multi-period decision models are developed, based on historical inspection and citation data. It is noted that, in general, a rational economic decision maker would choose not to comply with the Act until he were cited and forced to do so. Finally, recommendations for more effective public policy are suggested.

Crime Does Pay: An Analysis of the Burglary Profession

A recent paper [Gleason, J., D. Barnum. 1976. Effectiveness of OSHA penalties: Myth or reality. Interfaces 7 (1, Part I, November) 1–13.] examined the Occupational Safety and Health Act (OSHA) from a decision theory point of view, in an attempt to determine the effectiveness of the penalty provisions of the Act. That paper may be classified in the general area of the economics of crime, although violators of OSHA standards usually would not be considered criminals. This paper examines a group of people who consider themselves criminals—professional burglars. Those who have chosen crime as their profession are herein defined as rational economic criminals. The high rate of recidivism, especially among burglars (76 percent in 1974 [U.S. Department of Justice, Federal Bureau of Investigation. 1975. Uniform Crime Report, 1974. Washington, p. 51.]), supports the concept of the rational economic criminal, as does other recent work [Becker, G. 1968. Crime and punishment: An economic approach. The J. Political Econom. 76 (2, March–April) 169–217; Sjoquist, D. 1973. Property crime and economic behavior: Some empirical results. The Amer. Econom. Rev. LXIII (3, June) 439–446.].

Effectiveness of OSHA Penalties: Myth or Reality?

This paper examines the penalty provisions of the Occupational Safety and Health Act (OSHA) from a decision theory point of view. Four cases are examined in order to determine the effectiveness of the penalty provisions with respect to encouraging compliance with the Act prior to an inspection. All cases are based on historical inspection and citation data. It is shown that unsafe conditions will be corrected only if the cost of correction is less than a particular upper limit — these limits are presented for all cases for various rates of return. It is noted that, in general, a rational economic decision maker would choose not to comply with the Act until he were cited and forced to do so.

Malcolm Sharp and the Rosenberg Case: Remembrance of Things Past

There have been fewv moments in the Supreme Court in recent years which surpassed in tension and drama the final oral argument on Thursday, jtune 18, 1953, in the Rosenberg case.' The trial and sentence of the Rosenbergs in 1951 had provoked a worldwide furore which lhad mounted in intensity as the execution date approached. Pickets and counterpickets wvere parading in front of the WNhite Hlouse that Thursday afternoon, and a crowvd of several thousand persons packed the Supreme Court building and stood outside on the steps. The procedural status of the matter vas likewvise extraordinary. Three clays previously, on Monday, June 15, the Court had recessed until October after denying, by a vote of 5 to 4, a petition by the Rosenbergs for a stay of execution. On Tuesday, a new motion for a stay had been presented to Mr. Justice Douglas. Lawyers appearing for an amicus argued that the penalty provisions of the Atomic Energy Act2 -specincally the reqtuirement that no death sentence be imposed in a case involving atomic espionage wvithout a jury recommendation-superseded the Espionage Act of 19173 under wvhich the Rosenbergs had been indicted and convicted. Throughout the day on Tuesday, Mr. Justice Douglas had pondered the motion. Then, on Wednesday morning, June 17, he granted the stay; he felt that the point raised was a substantial one wvhich should be decided [only] after full argument and deliberation.4 A few hours after the stay was granted, Attorney

Damages. Liquidated Damages and Penalty Provisions in Government Contracts

Damages. Liquidated Damages and Penalty Provisions in Government Contracts