scholarly journals “We Can’t Just Throw Our Children Away”

2020 ◽  
Vol 7 (3) ◽  
pp. 613-645
Author(s):  
Anjelica Harris
Keyword(s):  
Juvenile Offenders ◽  
Supreme Court ◽  
Justice System ◽  
Court Decisions ◽  
Supreme Court Justice ◽  
Life Without Parole ◽  
Life Sentence ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
The Law

In the words of Supreme Court Justice Elena Kagan, children are different. The issue of how to sentence juvenile offenders has long been controversial. Although psychology acknowledges the connection between incomplete juvenile brain development and increased criminality, the justice system lags behind in how it handles juvenile offenders. A prime example is the case of Bobby Bostic, who at the age of sixteen was charged with eighteen offenses and sentenced to 241 years in prison. This sentence, known as a term-of-years or virtual life sentence, essentially guarantees that no matter what Bobby does or who he proves himself to be as an adult, he will die in prison. Since Bobby’s sentencing in 1997, the Supreme Court has held that sentencing juveniles to death violates the Eighth Amendment and has banned life without parole for juvenile offenders. Despite landmark Supreme Court decisions, a gap in the law continues to exist when it comes to juvenile non-homicide of- fenders who are certified and tried as adults. Thousands of juvenile offenders are now trapped in the legal gap that exists in the distinction, or lack thereof, between life without parole and lengthy term-of-years sentences. This Comment will explore the gap in the law, the various ways the States have chosen to handle this issue, and will propose a possible solution for Texas.

scholarly journals Implikasi Putusan Hakim Dalam Penetapan Sanksi Di Bawah Minimum Terhadap Tindak Pidana Narkotika

2019 ◽  
Vol 3 (1) ◽  
pp. 129-146
Author(s):  
Endy Ronaldi ◽  
Dahlan Ali ◽  
Mujibussalim Mujibussalim
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Research Method ◽  
Court Decisions ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Principle Of Legality

Tindak pidana narkotika merupakan kejahatan luar biasa sehingga menjadi prioritas pemerintah untuk diperangi. Penanggulangan tindak pidana narkotika diatur dalam Undang-Undang No. 35 Tahun 2009 tentang Narkotika. Salah satu pengaturan dalam undang-undang tersebut adalah pemberian sanksi di bawah minimum melalui putusan hakim. Sebagaimana kasus yang terjadi dalam Putusan Nomor 64/PID/2012/PN Sigli, Putusan No. 1/pid.sus/2016/PN Cag. (narkotika) dan Putusan No. 14/pid.sus/2016/PN Cag. Adapun permasalahan yang dikaji yaitu faktor penyebab hakim memutuskan sanksi di bawah minimum kepada pelaku narkotika dan implikasinya. Metode penelitian yang digunakan adalah metode yuridis normatif dengan mengkaji aspek normatif atas permasalahan yang dikaji. Pendekatan yang dilakukan adalah pendekatan kasuistik dengan menelaah putusan pengadilan. Putusan pengadilan dengan penetapan sanksi di bawah minimum disatu sisi bertentangan dengan asas legalitas dalam hukum pidana. Sehingga hal ini diakomodir dalam Surat Edaran Mahkamah Agung No. 3 tahun 2015. Narcotics crimes are extraordinary crimes so that become government priorities to be minimized. Tackling narcotics crime is regulated in Law No. 35 of 2009 concerning Narcotics. One of the regulations in the law is to impose sanctions below the minimum through a judge's decision. As the case with is the Decision Number 64/PID/2012/PN Sigli. The problems studied are the factors that cause the judge to decide the minimum sanctions for narcotics and their implications. The research method used is a normative juridical method by examining the normative aspects of the problem under study. The approach taken is a casuistic approach by examining court decisions. Court decisions with the determination of sanctions below the minimum on the one hand are contrary to the principle of legality in criminal law. So that accommodated in the Supreme Court Circular No. 3 of 2015.

scholarly journals Eighteen Is Not a Magic Number: Why the Eighth Amendment Requires Protection for Youth Aged Eighteen to Twenty-Five

2020 ◽  
pp. 807
Author(s):  
Tirza Mullin
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Criminal Justice System ◽  
Justice System ◽  
Juvenile Court ◽  
Magic Number ◽  
Criminal Process ◽  
Diminished Capacity ◽  
Eighth Amendment ◽  
The Supreme Court

The Eighth Amendment protects a criminal defendant’s right to be free from cruel and unusual punishment. This Note argues that any punishment of eighteen- to twenty-five-year-olds is cruel and unusual without considering their youthfulness at every stage of the criminal process, and that it is unconstitutional under the Eighth Amendment for these youths to be automatically treated as fully-developed adults. This Note will explore in depth how juveniles differ from adults, both socially and scientifically, and how the criminal justice system fails every youth aged eighteen- to twenty-five by subjecting them to criminal, rather than juvenile, court without considering their youthfulness and diminished capacity. This Note proposes three reforms that, implemented together, aim to remedy this Eighth Amendment violation. First, the Supreme Court should apply the seminal cases of Miller, Roper, and Graham to eighteen- to twenty-five-year-olds. Second, all states should extend the age of juvenile jurisdiction to twenty-five, processing offenders twenty-five and younger through the juvenile system accordingly. Finally, every actor in the system—including courts, lawyers, and legislatures—should label eighteen- to twenty-five-year-olds as “youth” and consider their age at every stage of the criminal system.

scholarly journals INDEPENDENSI SISTEM PERADILAN MILITER DI INDONESIA (Studi Tentang Struktur Peradilan Militer) / THE INDEPENDENCY OF MILITARY JUSTICE SYSTEM IN THE INDONESIAN (The Study of The Structure of The Judiciary)

2017 ◽  
Vol 6 (1) ◽  
pp. 105
Author(s):  
Slamet Sarwo Edy
Keyword(s):  
Supreme Court ◽  
Justice System ◽  
The Body ◽  
Judicial Power ◽  
District Court ◽  
Military Force ◽  
Military Justice ◽  
The Supreme Court ◽  
The Law ◽  
The Military

Peradilan militer adalah badan yang melaksanakan kekuasaan kehakiman di lingkungan TNI untuk menegakan hukum dan keadilan. Pengadilan militer tidak berpuncak dan tidak diawasi oleh markas besar TNI, tetapi berpuncak dan diawasi oleh MA RI. Filosofi terjadinya ketidakmandirian dalam sistem peradilan militer pertama, karena faktor kepentingan militer (TNI) yaitu berkaitan dengan tugas pokok TNI mempertahankan kedaulatan negara, oleh karena itu dengan menempatkan peran komandan satuan (Ankum) maupun lembaga kepaperaan didalam sistem penegakan hukum tersebut. Kedua, pada awal pembentukan organisasi peradilan militer menempatkan aparat peradilan sipil sebagai penjabat pada pengadilan militer. Ketua pengadilan negeri yang ditunjuk sebagai tempat kedudukan pengadilan tentara karena jabatannya menjadi ketua pengadilan tentara. Panitera pengadilan negeri juga menjabat sebagai panitera pengadilan tentara, kepala kejaksaan negeri ditetapkan sebagai jaksa tentara. Keadaan demikian menimbulkan keberatan-keberatan dengan alasan dipandang akan tidak menguntungkan bagi militer ataupun kesatuan militer. Peradilan militer ke depan harus mandiri baik secara kelembagaan maupun secara fungsional. Dalam konteks itu maka penyidik adalah polisi militer yang terdiri AD, AL dan AU, bertanggung jawab kepada Danpuspom TNI. Penuntutan dan pelimpahan perkara ke pengadilan dilaksanakan oleh oditur militer yang bertanggung jawab kepada Orjen TNI. Kewenangan pengadilan tidak lagi didasarkan kepada kepangkatan terdakwa. Pembinaan organisasi, administrasi, dan finansial pengadilan militer sepenuhnya berada dibawah MARI sebagaimana diatur dalam undang-undang.Military Court is the body that conduct the judicial power in the Indonesian Military Force (TNI) scope to enforce law and justice. The Military Court does not culminate and not supervised by the Indonesian Military Force headquarters, but culminates and is supervised by the Supreme Court of the Republic of Indonesia. The Philosophy of  the occurrence of dependence in the first military justice system, because of the interest of the military (TNI) which is associated with its principal task of TNI is to defend the national sovereignty, for that reason, by putting the role of commander of the unit (Ankum) as well as kepaperaan within the law enforcement system. The Head of the district court also covers Military Court in his jurisdiction because of it the Head of district court becomes the Head of Military Court. The Registrar is automatically also the Registrar of Military Court, Head of State Prosecutors assigned as military prosecutor. These circumstances affect objections which are seen as unfavorable for military or military units. The authority of the Court is no longer based on the rank of the defendant, the hierarchy of court proceedings such as judges, military Prosecutors, defense attorneys, no longer use the rank but wearing a toga. Development of organizational, administrative, financial of Military Courts is fully under the Supreme Court held consequently as stipulated in the law of judicial power.  The execution of criminal act by military prison, executed equally as prisoner without discriminating the person by his rank. 

GUILT AS A SUBJECTIVE SIDE OF LEGAL RESPONSIBILITY OF JUDGE

2017 ◽  
Author(s):  
Yaroslav Skromnyy ◽  
Keyword(s):  
Supreme Court ◽  
Legal Liability ◽  
Court Decision ◽  
Legal Responsibility ◽  
Court Case ◽  
Court Decisions ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Law ◽  
Subjective Aspect

The article reveals the main aspects of determining the guilt of a judge as a subjective aspect of imposing legal responsibility on him. It was established that the key aspects of determining the guilt of a judge as a subjective aspect of imposing legal responsibility on him are represented by the provisions of such legislative and regulatory documents as the Constitution of Ukraine, the Criminal Procedure Code of Ukraine, the Resolution of the Plenum of the Supreme Court of Ukraine «On the independence of the judiciary», the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights», Resolution of the Plenum of the Supreme Court of Ukraine «On judicial practice in cases of crimes against human life and health», Law of Ukraine «On the judicial system and the status of judges». It was found that the evidence of the judge's guilt in relation to the offense committed by him today is one of the important issues of imposing a certain type of legal liability on him. It has been determined that judges often commit offenses due to the adoption of unfounded and often illegal court decisions. It has been proved that the guilt of judges for the offenses committed by them is manifested as a result of non-compliance or disregard for the norms of procedural legislation or labor discipline. It has been determined that in order to make a court decision, a judge is obliged to determine the norms of the law, a number of bylaws and study judicial practice in considering the relevant court case. It has been established that one of the elements of a judge's fault is an inner conviction. It has been established that the subject of the court case regarding the adoption by the judge of an unjustified and illegal court decision is not the corpus delicti, which is present in the actions of the judge, but the legality of that, or the investigator will refuse to initiate a criminal case against the judge for making an unjust decision. It was found that the practical methods of determining the guilt of a judge in committing an offense should be a comprehensive study of the materials of the case, which is open against the judge, and the analysis of data from the judge's dossier, in particular, data on the consideration of such cases by a judge and the adoption of appropriate court decisions on them. It has been proven that quite often the release of a judge from legal liability occurs in conditions when offenses committed by a judge are re-qualified as a miscarriage of justice.

scholarly journals The dispute about law in urgent administrative cases at the appeal of the bodies of revenue and fees

2019 ◽  
pp. 85-90
Author(s):  
O.V Skochylias-Pavliv ◽  
N.V. Lesko
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Legal Definition ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
Definition Of ◽  
Judicial Procedure ◽  
Administrative Proceedings

The article deals with current issues related to the procedure of consideration and resolution of urgent administrative cases at the appeal of the bodies of revenue and fees. The peculiarities of the specified category of cases which are manifested in the urgency; subject composition; notification of the participants of the case on the date, time and place of the case; filing of the claim; calculation of procedural terms; announcement and service of court decisions; appeal and cassation appeal; the court fee are analyzed. It is noted that the statements of the case are a statement of claim, reaction a statement of claim, a response to a reaction, a protest, a third party’s explanation of the statement claim, or reaction a statement of claim. The form of the appeal of tax authorities to the administrative court is a claim. Obviously, that is why in these categories of cases there are often misunderstandings regarding the payment of court fees as evidenced by a large number of decisions on leaving without motion the claim of bodies of revenue and fees on the ground of failure to submit to the court a document on payment of court fees. Central to the article is the consideration of the issue of understanding of the dispute about law as one of the grounds for refusing to open proceedings at the appeal of the bodies of revenue and fees. The only form of administrative proceedings is the consideration of the case on the statement of claim. As is well known, a lawsuit involves conflict between the parties. The mutual rights and obligations of the parties to prove their claims and objections constitute the substance of the dispute. However, the peculiarities of disputes at the request of the bodies of revenue and fees due to the fact that they don’t have a dispute about the law. It is noted that there is no legal definition of the term «dispute about the law», which significantly complicates the consideration and resolution of this category of cases. The interpretation of this concept exists only in judicial practice, in particular in resolutions of the Supreme Court but they are also contradictory. That’s why we consider it necessary to supplement article 283 Code of Administrative Proceedings of Ukraine a note defining the concept of «dispute about the law», which should be understood as a claim of the taxpayer to the tax authority regardless of the subject of the claim which may be submitted to administrative or judicial procedure. Keywords: a dispute about law, administrative proceedings, administrative case, revenue, and fees, claim.

scholarly journals The Law as a Drawbar, or Judicial Arbitrariness: Recidivism = Repetition of Crimes in the Framework of Circumstances Aggravating the Punishment

2019 ◽  
Vol 73 (2) ◽  
pp. 75-81
Author(s):  
Я. Г. Лизогуб
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Current Problem ◽  
Criminal Code ◽  
Court Decisions ◽  
Criminal Punishment ◽  
National Courts ◽  
The Supreme Court ◽  
Public Risk ◽  
The Law

The author has studied the current problem in Ukrainian criminal law – the problem of the courts’ understanding of the general jurisdiction of the repetition of offences, as well as their recidivism in the framework of the circumstances aggravating criminal punishment. Attention at the beginning of the paper, has been paid to the importance of understanding the regulatory act as the main source of criminal law in Ukraine. It has been demonstrated that it is the regulatory act that should determine the rules, which should be obeyed by the judicial authorities of Ukraine. It has been emphasized that it is necessary to take into account the law while interpreting the prescriptions of normative acts by the national courts; it has been stressed that such interpretation should proceed from the definitions and formulations available, first of all, in the legislation. The author has emphasized on the importance of adhering to the rules and regulations, in the course of such interpretation, used in the law without such unreasonable extension or distortion of their content by relevant court decisions. Having analyzed the relevant Resolution of the Plenum of the Supreme Court of Ukraine, as well as the verdict of one of the Courts of Appeal of Ukraine, the author tries to prove that the aforementioned courts violated the limits of its interpretation in explaining the provisions of the criminal law on repetition of offences and recidivism, while unjustifiably giving the value of one criminal feature to another one. According to the author, these judicial authorities have formally taken the formulation of the content of the repetition of offences and recidivism, which are legally saturated in the current Criminal Code of Ukraine. Thus, they actually ignored the increased public risk of recidivism against the backdrop of the repetition of offences. The specificity of committing the offenses inherent to the recidivism is not taken into account, when a person has already a previous conviction for unlawful activity, as well as the fact that such crimes are usually characterized in terms of their consistency and randomness. On this basis, the author has substantiated the incorrectness (criminal injustice) of the approach recommended by the Plenum of the Supreme Court of Ukraine to the application of the institutions of recidivism and the repetition of offences in deciding the issue of punishment. Proper arguments have been provided. Specific conclusions have been formulated.

Minority Control of Court Decisions in Ohio

1930 ◽  
Vol 24 (3) ◽  
pp. 638-648
Author(s):  
W. Rolland Maddox
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Theodore Roosevelt ◽  
Constitutional Convention ◽  
Court Of Appeals ◽  
Judicial Decisions ◽  
Chief Justice ◽  
The Supreme Court ◽  
The Law ◽  
Minority Control

The experience of Ohio with the requirement of concurrence of an extraordinary majority of the Supreme Court to declare a statute invalid is an illuminating commentary on the desirability of such a restriction. Much has been spoken and written on both sides of the question. Those who have seen laws embodying worth-while reforms invalidated by the courts, many times by bare majority decisions, have campaigned for a curtailment of the judicial prerogative. Publicists have expatiated on the evils of the situation. Textbook writers have embodied the arguments in their discussions. Teachers, it is to be feared, have quite glibly enlarged upon the necessity of unseating our “judicial obligarchy.”The late President Theodore Roosevelt, addressing the Ohio constitutional convention in 1912, urged that body to propose an amendment providing for the recall of judicial decisions. He failed to convince the convention of the desirability of his remedy, but he succeeded in creating a feeling that something must be done; and an amendment to the judiciary article was adopted, reading as follows: “No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring the law unconstitutional and void.” Since the Supreme Court is composed of a chief justice and six associate justices, the restriction amounts to a requirement of the concurrence of six justices in decisions of this kind.

SIGNIFICANCE OF EAEU COURT DECISIONS IN FORMATION SUPRANATIONAL LEGISLATION

2021 ◽  
pp. 22-26
Author(s):  
Т.Ю. Изгагина
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
International Agreements ◽  
Court Decisions ◽  
Member States ◽  
National Legislation ◽  
The Supreme Court ◽  
The Law ◽  
The Right

Суд ЕАЭС является пoстoяннo действующим наднациональным судебным oрганoм и рассматривает спoры по вoпрoсам реализации Дoгoвoра об ЕАЭС, международных договоров в рамках Союза и (или) решений органов Союза. Анализ законодательств стран ЕАЭС показал, что на уровне национальных законодательств страны наделили правом на обращение в данный суд. Кроме того, правоприменительная практика таможенного законодательства в государствах-участницах ЕАЭС в связи с вынесением судом ЕАЭС разъяснений, решений складывается неединообразно. В настоящее время остро стоит вопрос о необходимости выработки механизмов исполнения решений суда ЕАЭС на территориях стран ЕАЭС. The court of the EEU is a supranational permanent judicial body and considers disputes arising on the implementation of the Agreement, international agreements within the Union and (or) decisions of the Union’s bodies. An analysis of the legislation of the EEU countries showed that at the level of national legislation, countries have given the right to appeal to the Supreme court. In addition, the law enforcement practice of customs legislation in the EEU member States in connection with the issuance of explanations and decisions by the EEU court is not uniform. Currently, there is an urgent question of the need to develop mechanisms for the enforcement of decisions of the EEU court on the territories of the EEU countries.

The Use of Deadly Force in Enforcing the Law: Gold in the Light of History

1992 ◽  
Vol 26 (3) ◽  
pp. 319-354
Author(s):  
Yoram Shachar
Keyword(s):  
Supreme Court ◽  
Critical Review ◽  
Attorney General ◽  
Case Law ◽  
Deadly Force ◽  
Court Decisions ◽  
Supreme Court Justice ◽  
Alternative Means ◽  
Supreme Court Decisions ◽  
The Law

More than thirty-two years have passed since Supreme Court Justice Agranat's ruling that, even in the absence of alternative means to effect a lawful arrest, deadly force may be employed only where the arrest is pursuant to the commission of a felony. That ruling, in the case of Gold v. The Attorney General, stands unchallenged to this day. At the time that decision was handed down, Israeli case law provided a dearth of analytic tools for critical review. Thus, Gold was incorporated into Israeli law pristine and unencumbered by the entourage of learned comments that now regularly escorts Supreme Court decisions. It is not my intention to tarnish that purity of Gold by disclosing some undetected flaw in the ruling. Rather, I believe it is time that we take that ruling a step further on the course it set.

Sign in / Sign up

Export Citation Format

Share Document