scholarly journals Honoring Innocent Until Proven Guilty

2019 ◽  
Vol 6 (4) ◽  
pp. 41-70
Author(s):  
Stephen Rispoli
Keyword(s):  
Rule Of Law ◽  
Prison Population ◽  
Good Reason ◽  
Economic Consequences ◽  
Default Rule ◽  
Pretrial Release ◽  
Pretrial Detention ◽  
Law System ◽  
Constitutional Protections ◽  
A Current

Texas’s current prison population consists of far more pretrial detainees than convicted criminals. Despite United States and Texas constitutional protections, the default rule in many jurisdictions, including Texas, detains misdemeanor and non-violent felony defendants unless they can post a monetary bond or get a surety to post the bond for them (“bail bond”) to obtain their release. Most pretrial detainees remain detained due not to their alleged dangerousness, but rather because they simply cannot afford to post bail (or get someone to post it for them). As a result, many pretrial detainees find themselves choosing between hamstringing their financial future or remaining in detention until trial. If Americans are serious about “honoring the presumption of innocence,” we must reform the way that misdemeanor and non-violent felony defendants are treated while awaiting trial. Rather than treat them as guilty and keep them in jail unless they can pay for their release, the standard should be to release them unless there is a very good reason for not doing so. By changing the default option from pretrial detention to pretrial release, many Texas judges will be more pre-disposed to release misdemeanor and non-violent felony defendants on conditions other than the posting of monetary bail. This switch will result in fewer people being detained simply because they cannot afford to be released—which will prevent adverse economic consequences to already disadvantaged citizens. Proposed reform has been discussed for decades. Reforming the bail system in Texas is a current, critical need. This criminal justice issue undermines the public’s faith in our system of justice and detrimentally affects the economic and social status of countless citizens who will ultimately be found not guilty. Doing nothing weakens our overall rule-of-law system and ultimately erodes the foundation upon which our society is built.

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

Die Entwicklung des Strafrechts der Ukraine

2020 ◽  
Vol 66 (3) ◽  
pp. 380-396
Author(s):  
Rainer Birke
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Law ◽  
Penal Code ◽  
Science And Society ◽  
The Rule Of Law ◽  
Law System ◽  
The Law ◽  
Simplified Procedure ◽  
Procedural Rights

In 2001, a new penal code was adopted in Ukraine after a comprehensive discussion in politics, legal science and society, replacing a codification of the Soviet era dating back to 1960, obviously unsuitable for the new realities. The new penal code of 2001 has been changed many times since then. This also applies to the criminal law provisions against corruption, evaluated and commended by GRECO. However, there is criticism of the criminal law system in Ukraine. A large number of the issues have little or nothing to do with the text of the penal code itself, but with deficits in the application of the law and the resulting loss of confidence in the activities of the law enforcement authorities. The judiciary is said to have a significant corruption problem and is significantly overloaded. The latter is to be counteracted by the introduction of the class of misdemeanor (“kryminalnyj prostupok”) in 2019 that can be investigated in a simplified procedure, which has been criticized, inter alia, because it bears the risk of the loss of quality and possibly infringes procedural rights. Also in 2019, the work on a once again completely new codification of the penal code was commenced, which is not entirely surprising in view to the existing criticism of manual errors or inadequacies of the recent code. It is to be hoped that Ukraine, with the existing will and the necessary strength, will succeed in the creation of a criminal law system that is fully in compliance with the rule of law and that a penal code will be drafted that finally finds full recognition in the society.

Does Corruption End the Dominant Party System? A Comparative Analysis of the Italian and Turkish Cases

2016 ◽  
Vol 25 (2) ◽  
pp. 320-336
Author(s):  
Gülçın Balamır Coşkun
Keyword(s):  
Rule Of Law ◽  
Party System ◽  
Final Section ◽  
Separation Of Powers ◽  
Party Systems ◽  
Christian Democracy ◽  
Law System ◽  
Dominant Party ◽  
System A ◽  
High Level

This article argues that the effects of high-level corruption scandals on the future of a dominant party depend on the existence of a rule of law system based on the separation of powers. The article will study two examples from a comparative perspective to concretise its theoretical claims: the Christian Democracy Party in Italy, which was the dominant party from 1948 to 1992, and the Justice and Development Party in Turkey. The comparison will be based on an institutionalist perspective. The first part tries to provide a theoretical clarification of the concepts of predominant party systems and corruption. The second part discusses whether the Turkish and Italian party systems can be classified as predominant and the characteristics of these systems. The final section seeks to draw out similarities and differences between these two systems and the effects corruption has on them.

The Empirical Case for Pretrial Risk Assessment Instruments

2021 ◽  
pp. 009385482110416
Author(s):  
Sarah L. Desmarais ◽  
John Monahan ◽  
James Austin
Keyword(s):  
Risk Assessment ◽  
Race And Ethnicity ◽  
Scientific Evidence ◽  
Criminal Activity ◽  
System Change ◽  
Future Research ◽  
Assessment Instruments ◽  
Pretrial Release ◽  
Pretrial Detention ◽  
Rigorous Research

Pretrial risk assessment instruments are used in many jurisdictions to inform decisions regarding pretrial release and conditions. Many are concerned that the use of pretrial risk assessment instruments may be contributing to worsened, not improved, pretrial outcomes, including increased rates of pretrial detention and exacerbated racial disparities in pretrial decisions. These concerns have led prominent organizations to reverse their position on the role of pretrial risk assessment instruments in pretrial system change. Reforms that centered on their use have been rolled back or have failed to be implemented in the first place. However, the scientific evidence behind these concerns is lacking. Instead, the findings of rigorous research show that the results of pretrial risk assessment instruments demonstrate good accuracy in predicting new criminal activity, including violent crime, during the pretrial period, even when there are differences between groups defined by race and ethnicity. Furthermore, the scientific evidence suggests they can be an effective strategy to help achieve pretrial system change, including reducing pretrial detention for people of color and white people, alike, when their results are actually used to inform decision-making. In this article, we review the scientific evidence in relation to three primary critiques of pretrial risk assessment instruments, namely, that their results have poor accuracy and are racially biased and that their use increases pretrial detention rates. We also provide recommendations for addressing these critiques to ensure that their use supports, rather than detracts from, the goals of pretrial reform and articulates an agenda for future research.

scholarly journals TRANSFER OF CHATTELS BY NON-OWNERS: STILL AN OPEN PROBLEM

2018 ◽  
Vol 77 (1) ◽  
pp. 151-178
Author(s):  
Andrew Tettenborn
Keyword(s):  
Open Problem ◽  
Good Reason ◽  
Default Rule ◽  
Security Interest

AbstractThe current law relating to the unauthorised dispositions of chattels is an arbitrary and unpredictable mess that has grown up haphazardly and piecemeal. In this connection we need a default rule that is straightforward rational and logical. Such a rule should follow three principles. First there should be a background rule of entrustment, whereby anyone entrusting another with goods takes the risk of subsequent misdealing. Secondly, this rule should apply to all proprietary interests and not simply to ownership. Thirdly, it should be open to exceptions where there is good reason to admit them, for example to accommodate specific schemes covering particular types of security interest.

scholarly journals An assessment of the English and maths skills levels of prisoners in England

2016 ◽  
Author(s):  
Brian R Creese
Keyword(s):  
General Population ◽  
Prison Population ◽  
Literacy Skills ◽  
Prison Education ◽  
The Past ◽  
Numeracy Skills ◽  
A Priority ◽  
Reducing Recidivism ◽  
A Current ◽  
Better Than

Although the direct links between education and reducing recidivism in prisoners are problematic, there is little argument that education is a factor in promoting reintegration and rehabilitation. There is a current focus in prison education on education for employment, and yet there are no recent or unambiguous data about the skills levels of the prison population. The most often quoted figures are both 15 years out of date and deeply flawed in terms of their comparisons with the general population. This article sets out a new study that takes the mandatory initial assessments carried out on every new prisoner between August 2014 and July 2015 and compares them with the national Skills for Life survey conducted in 2011. This provides us with some hard facts about the English and maths skills of the past year's intake of prisoners. The conclusions argue that while the numeracy skills of prisoners are better than previously understood, the cohort has extremely poor literacy skills, and addressing these needs should be a priority for government.

scholarly journals The Change of Judicial Power in China in the Era of Artificial Intelligence

2021 ◽  
pp. 1-16
Author(s):  
Weidong JI
Keyword(s):  
Artificial Intelligence ◽  
Information Technology ◽  
Cloud Computing ◽  
Big Data ◽  
Rule Of Law ◽  
Judicial Power ◽  
Law System ◽  
The Face ◽  
Legal Expert ◽  
Survival Of The Fittest

Abstract The singularity of artificial intelligence (AI), which transcends human intelligence to play the role of God, is imminent. In this context, the Chinese judicial system has gained some latecomer advantage, with the help of information technology, the Internet, big data, cloud computing, and AI to improve the efficiency and transparency of case handling. The trial process has undergone extensive and profound qualitative mutations. This represents a challenge to the institutional arrangements of the modern rule of law. At this stage, we should adopt a cautious and prudent attitude towards the design and application of legal-expert systems as well as machine learning. Especially from the aspect of computer sentencing, it is even more necessary to avoid a rush for quick results, and there is no need to completely exclude the judge’s discretion and free evaluation of the evidence through inner conviction. The finality of the judicial power is destined to choose a correct final solution through a debate on the survival of the fittest mechanism. In the face of such a modern rule-of-law system, big data, cloud computing, information technology, and AI are just auxiliary means to achieve legal justice. It is impossible to put the cart before the horses. This is a basic principle that we should always bear in mind.

scholarly journals application of child adoption (balaku anak) and its legal effects on customary law system of the Dayak Ngaju tribe

2020 ◽  
Vol 8 (1) ◽  
pp. 1-8
Author(s):  
Rizki Yudha Bramantyo ◽  
Irham Rahman
Keyword(s):  
Rule Of Law ◽  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
Customary Law ◽  
Primary Data ◽  
The Rule Of Law ◽  
Law System ◽  
Positive Law ◽  
Child Adoption

The purpose of this research is to find out how the application of children's behavior and its influence on the customary law system of the Dayak Ngaju Tribe. The research method used is qualitative. Primary data comes from observations and interviews. Meanwhile, secondary data from previous studies were collected to support the findings. The findings reveal that there are differences in the rule of law between Islamic law and positive law and customary law of the Dayak Ngaju tribe. Islamic law regulates inheritance and inheritance rights according to lineage, positive law regulates the return of cases of adoption to civil law, and customary Dayak Ngaju law recognizes adoption.

70 Years of Human Rights and the Rule of Law in Europe

2021 ◽  
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Rule Of Law ◽  
Good Reason ◽  
Common Interest ◽  
70Th Anniversary ◽  
Present Condition ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Venice Commission

The years of 2019 and 2020 offered the opportunity to commemorate four anniversaries: On 4 November 2020, it was 70 years ago that the ECHR, was signed. Ten years later, the ECtHR began its work. The Council of Europe had its 70th anniversary on 5 May 2019. Finally, the European Commission for Democracy through Law (Venice Commission) established in 1990, could celebrate its 30th birthday. These jubilees offer a good reason to take a look at how these institutions have contributed to making human rights and the rule of law a matter of common interest in Europe, and what their present condition is. This volume contains the contributions on this topic held at the Walter-Hallstein Symposium on 5 and 6 March 2020. With contributions by Veronika Bílková, Thomas Giegerich, Rainer Hofmann, Stefan Kadelbach, Wilfried Loth, Angelika Nußberger, Paulo Pinto de Albuquerque and Stefanie Schmahl.

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