| In practice, those experimental programs of adversarial sentencing procedure reform have not proved successful. Empirical study has revealed that compared with previous practice, the reformed sentencing procedure does not lead to apparent differences in presenting sentencing evidence and facts, nor does it result in significant changes with respect to sentencing outcomes. The reformed procedure also consumes more judicial resources and impedes court efficiency. In general, within the current criminal penalty structure, although some progress has been achieved in the adversarial sentencing procedure reform, it has not yet met the expectation to produce reasonable and fair sentencing.Such result can be attributed to the underlying theory upon which the reform is established. The theory argues that the major problem in current sentencing system is the unfairness of sentencing procedure. In particular, criminal trials focus only on conviction, judges care only for conviction facts, and the current law does not provide a sentencing procedure in an adjudication model. So the theory suggests to learn from the common law model and to establish an adversarial sentencing procedure. However, it is a mistake that traditional common law sentencing practice employs an adversarial procedure. In contemporary China, those sentencing issues that draw public attention and criticisms are not whether the sentencing procedure is fair, but the unevenness and rigidness of sentencing, although both are substantive issues. Rigid sentencing reflects the lack of flexibility in sentencing and the failure to take into consideration detailed facts and individual circumstances of a specific defendant. Therefore, the main problem is not a procedural one, but the mistake of addressing a substantive issue in a procedural manner. Future sentencing reform should firstly center on substantive reform supplemented by procedural reform. Specifically, the first step should be the standardization of sentence criteria, and then move to the reform of sentencing procedure and use procedural reform to fertilize substantive reform. Secondly, only small changes, instead of a thorough one, should be taken in sentencing procedure reform. Future reform should also standardize sentencing procedure in accordance with principles of efficiency and rationale, develop a sentence reasoning system, and establish remedial procedure for sentencing. |
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