scholarly journals Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

2021 ◽  
Author(s):  
◽  
Sean J. Mallett
Keyword(s):  
New Zealand ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Individual Case ◽  
Regional Disparity ◽  
Judicial Discretion ◽  
The Individual ◽  
Synthesis Approach

<p>One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This paper will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the ‘instinctive synthesis’ approach, both of which will be shown to be unsatisfactory. Instead, the paper will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.</p>

scholarly journals Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

2015 ◽  
Vol 46 (2) ◽  
pp. 533 ◽  
Author(s):  
Sean J Mallett
Keyword(s):  
New Zealand ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Individual Case ◽  
Regional Disparity ◽  
Judicial Discretion ◽  
The Individual ◽  
Synthesis Approach

One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand, there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This article will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the "instinctive synthesis" approach, both of which will be shown to be unsatisfactory. Instead, the article will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.

scholarly journals Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

2021 ◽  
Author(s):  
◽  
Sean J. Mallett
Keyword(s):  
New Zealand ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Individual Case ◽  
Regional Disparity ◽  
Judicial Discretion ◽  
The Individual ◽  
Synthesis Approach

<p>One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This paper will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the ‘instinctive synthesis’ approach, both of which will be shown to be unsatisfactory. Instead, the paper will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.</p>

scholarly journals Regulacje normatywne dotyczące ochrony praw jednostki w irlandzkim procesie karnym

2019 ◽  
Vol 17 (1) ◽  
pp. 91-98
Author(s):  
Izabela Jankowska-Prochot
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Protection Of Human Rights ◽  
The Individual

This article aims to bring closer knowledge on respecting and protecting rights and freedoms of the individual in Ireland. The author presents the evolution of the source of Irish criminal law and criminal justice system in that country. The influence of the Convention for Protection of Human Rights is also discussed. The text is based on relevant Irish statues and opinions of the country’s jurisprudence.

Public Attitudes Toward New Prisons in New Zealand and Deficit Narratives: A Quantitative Survey

2018 ◽  
Vol 29 (4) ◽  
pp. 348-360 ◽  
Author(s):  
Adele N. Norris ◽  
Kalym Lipsey
Keyword(s):  
New Zealand ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
News Media ◽  
Media Coverage ◽  
Justice System ◽  
Prison Population ◽  
Public Attitudes ◽  
The United States ◽  
Quantitative Survey

The imprisonment rate in New Zealand ranks seventh among the Organisation for Economic Co-operation and Development (OECD). Yet the imprisonment of Indigenous people is on par with the United States, which has the world’s highest incarceration rate. Almost 70% of the prison population in New Zealand is comprised of people racialized as non-White. In 2016, the National Government proposed to spend $2.5 billion over a 5-year period to build new prisons (1,500 prison beds) to accommodate a growing prison population. This study assessed public attitudes toward the need for more prisons and the equity of treatment of individuals within the criminal justice system. Findings from a 2016 and 2017 quantitative survey of 5,000 respondents each year revealed that roughly half of the respondents believed the proposed spending for new prisons to be extremely to somewhat necessary. A large proportion of respondents also believed Māori and Pākehā, if convicted of the same crime, are treated similarly within the criminal justice system. New Zealand scholars have critiqued news media coverage of contentious sociopolitical issues, such as crime and prisons, for employing tactics that have worked to construct a morally and culturally deficit “Other” while normalizing whiteness, rendering it invisible and raceless. This article concludes that this process masks racial disparities of individuals located within the criminal justice system and preserves the ideal that prisons are a normal function of the social landscape.

scholarly journals Wife Assault, The Justice System and Professional Responsibility

1995 ◽  
Vol 33 (4) ◽  
pp. 908
Author(s):  
Diana Ginn
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Battered Women ◽  
Criminal Law ◽  
Justice System ◽  
Professional Responsibility ◽  
Wife Assault ◽  
The Past ◽  
Key Players ◽  
The Way

The author reviews the response of the criminal justice system to the problem of wife assault by focusing on the key players within the system. The way the criminal law applies to wife assault affects battered women's access to that area of law known as family law, with negative repercussions for them and their children. Several myths about the nature of wife assault help ensure an inappropriate response. These include the myths that the woman is to blame, that by just leaving the abusive situation she can resolve it, and that if she does not leave it is because she enjoys the abuse. The author reviews current methods used by police, prosecutors and judges for dealing with wife assault and discusses the inadequacies of those methods. She concludes that despite many recommendations for change, there have been no significant improvements in the way the criminal justice system deals with wife assault. It is incumbent upon the legal profession to demonstrate professional responsibility by ensuring that wife assault is taken more seriously than it is now and than it has been in the past. This is a necessary reform before battered women can rely on the criminal justice system.

scholarly journals Legality Letter of Statement of Khilaf in Indonesia Criminal Justice System

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 128
Author(s):  
Rugun Romaida Hutabarat
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Primary Source ◽  
Secondary Data ◽  
Criminal Offense ◽  
Criminal Procedure Law ◽  
The Law ◽  
Criminal Matters

In criminal law, a person charged with a criminal offense may be punished if it meets two matters, namely his act is unlawful, and the perpetrator of a crime may be liable for the indicated action (the offender's error) or the act may be dismissed to the perpetrator, and there is no excuse. The reasons may result in the death or the removal of the implied penalty. But it becomes a matter of how if the Letter of Statement Khilaf is the answer to solve the legal problems. The person who refuses or does not do what has been stated in the letters is often called "wanprestasi" because the statement is categorized as an agreement. The statement includes an agreement which is the domain of civil law or criminal law, so its application in the judicial system can be determined. This should be reviewed in the application of the law, are there any rules governing wrong statements in the criminal justice system. By using a declaration of khilaf as a way out of criminal matters, then the statement should be known in juridical rules. This study uses normative juridical methods, by conceptualizing the law as a norm rule which is a benchmark of human behavior, with emphasis on secondary data sources collected from the primary source of the legislation. The result of this research is that the statement of khilaf has legality, it is based on Jurisprudence No. 3901 K / Pdt / 1985 jo Article 189 Paragraph (1) of Indonesian criminal procedure law. However, this oversight letter needs to be verified in front of the court to be valid evidence, but this letter of error is not a deletion of a criminal offense, because the culpability of the defendant has justified the crime he committed. Such recognition, cannot make it free from the crime that has been committed.Keywords: Legality, Letter of Statement, Criminal Justice System

scholarly journals Discreet Discretion and Moderate Moderation in Judicial Sentencing: A commentary on Kenya’s Sentencing Policy Guidelines, 2016

2017 ◽  
Vol 3 (1) ◽  
pp. 89-112
Author(s):  
Harrison O Mbori
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Cultural Development ◽  
Judicial System ◽  
Sentencing Guidelines ◽  
Criminal Sentencing ◽  
Administration Of Justice ◽  
Sentencing Policy

Criminal sentencing is an integral part in any judicial system for the fair administration of justice. The process of sentencing and the standards applied by judicial officers has, however, been a notoriously difficult component in many criminal law systems. In Kenya, sentencing has been blamed as one of the sources of ‘popular dissatisfaction with the administration of justice’ to borrow from Roscoe Pound. This was the impetus for the Kenyan Judiciary to introduce the Sentencing Policy Guidelines, 2016 (SPGs). This paper is a general commentary, critique, and analysis of the SPGs. The author argues that SPGs come at an instructive epoch in Kenya’s economic, socio-political, and cultural development. This contribution is not a polemic on the Kenyan SPGs. The commentary makes sideglances to various jurisdictions that have had a longer experience with sentencing guidelines. The article forecasts that Kenyan SPGs will, despite its few shortcomings, nevertheless, prove to be important for all judicial officers involved in Kenya’s criminal justice system.

The Criminal Justice System: Materials on the Administration and Reform of the Criminal Law

1980 ◽  
Vol 94 (2) ◽  
pp. 477
Author(s):  
James Lindgren ◽  
Franklin E. Zimring ◽  
Richard S. Frase
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System

Barriers to Access in the Norwegian Criminal Justice System

2021 ◽  
Author(s):  
Patrick Kermit ◽  
Terje Olsen
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Sign Language ◽  
Justice System ◽  
Mutual Recognition ◽  
Deaf People ◽  
Barriers To Access ◽  
Interpreter Service ◽  
The Individual ◽  
Demand Changes

This chapter presents and discusses barriers that Deaf people who have Norwegian Sign Language as their first language face in encounters with the Norwegian criminal justice system. Since this system is based exclusively on spoken language, and mainly depends on the individual law professional’s ability to establish critical, self-reflective practices in each case, Deaf people’s legal safety, as demanded by the rule of law, cannot be taken for granted. Establishing a public, independent, professionalized sign language interpreter service in Norway, however, has helped to reduce risks for Deaf people. Independent interpreters can demand changes in the criminal justice system’s practices, thus making these practices more accessible to Deaf people. Empirical examples illustrating the interaction between Deaf people, law professionals, and interpreters are presented and analyzed. This interaction is less characterized by conflict and more by cooperation and mutual recognition, where both Deaf people and law professionals state their confidence and trust in their interpreters. The chapter concludes that structural change and organization, such as the establishment of an independent public interpreter service in Norway, trump general and well-meant inclusive intentions in organizations such as the Norwegian criminal justice system when it comes to secure Deaf peoples’ rights and the prevention of miscarriage of justice.

After the Crime

2021 ◽  
Vol 24 (3) ◽  
pp. 367-396
Author(s):  
Paul H. Robinson ◽  
Muhammad Sarahne
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Decision Makers ◽  
Access To Education ◽  
Preferential Treatment ◽  
Collateral Consequences ◽  
Probation And Parole ◽  
Principles Of Justice

Although an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

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