Law Criminal Justice Research Articles

Decarceral Visions Conference: Voices from the Criminal Justice Law Review's 2023 Symposium

Decarceral Visions Conference: Voices from the Criminal Justice Law Review's 2023 Symposium

The Concept of Restorative Justice in the Criminal Legal System: A Breakthrough in Legal Benefits

Historically, alternative efforts to resolve criminal cases have existed since the Dutch colonial era, even before Indonesia's independence. Currently, there are several forms of resolving criminal cases outside of court in force, namely diversion (transferring the resolution of children's cases from the criminal justice process to a process outside criminal justice in accordance with the Juvenile Criminal Justice System Law), Afkoop (as regulated in Article 82 of the Criminal Code), and Seponeren (dismissal of cases in the public interest by the Attorney General). The aim of this research is to analyze the concept of restorative justice in the criminal law system as a breakthrough in legal benefits. Approach The research method that can be used in this research is the empirical juridical approach. This approach combines a normative juridical approach with an empirical approach. Based on the analysis carried out, restorative justice can be applied in cases that cause financial loss or minor crimes. The principle of restorative justice in resolving criminal cases in Indonesia does not only depend on formal and material criminal law provisions but is also based on a broader concept of punishment. The model for implementing restorative justice in Indonesian criminal procedural law can be found through a criminal resolution mechanism that follows a legitimate legal problem resolution approach, which is reflected in the reform of the criminal justice system in Indonesia, which is based on an evaluation of the criminal justice system.

Analysis of The Role Based on The Customary Criminal Justice System of Dayak Bangkalaan in The National Criminal Justice System


 
 
 This research is motivated by indigenous peoples' belief in customary rules which encourages studies on their legitimacy in the Indonesian legal system. The author collected study samples from the Bangkalan Dayak tribe in South Kalimantan Province as an example of an Indonesian customary village. This study focuses on two formulations of problems, namely the role of the customary criminal justice system in the national criminal justice system and the impact of Dayak Bangkalan customary criminal justice law enforcement when related to the national criminal justice system. This research is a sociological legal research, the legal data collection technique is carried out through literature review, including primary legal data, secondary legal data, and tertiary legal data related to this research. The result of the study is that the state recognizes the existence of customary law communities in accordance with Article 18B of the 1945 Constitution of the Republic of Indonesia. Even though there is no legal framework that can regulate this at the national level, the mandate of regional legislative policy still recognizes the existence of customary courts. This is evidenced by the existence of regional regulations that recognize and protect indigenous peoples. In addition, the results of the study conveyed that the legal implications arising from customary court decisions turned out to be able to be used as legal data in national criminal courts.
 
 

Assessing the Implication of Plea Bargain under ACJA, 2015 in Nigeria’s Anti-corruption Crusade: Lessons from Kenya

The fight against corruption under the Nigerian Criminal Justice System has gradually witnessed the use of plea bargain in the prosecution of corruption cases; drawing criticism and approval from stakeholders. Plea Bargain is an agreement between the prosecutor and defendant whereby the defendant concedes to plead guilty to a particular charge in exchange for some concession from the prosecutor. This paper assesses the implication of plea bargain under the Administration of Criminal Justice Act, 2015 in the fight against corruption in Nigeria; drawing lessons from Kenya. The paper is doctrinal, using primary and secondary sources of law such as case law, books, articles in journals, and internet materials. It examines plea bargain and innovations under Administration of Criminal Justice Act, 2015 as well as complementary analysis of plea bargain under Administration of Criminal Justice Law (ACJL) of states and Kenya’s application of plea bargain in its anti-corruption fight. The paper finds that judicial decisions considered both in Nigeria and Kenya reveals that plea bargaining is a useful tool in fighting corruption. One of the key recommendations of this paper is having a Plea Bargain Guideline and Rule pursuant to ACJA 2015 as obtainable in Kenya. This will act as a guide for prosecutors, accused persons and other stakeholders in negotiating a plea bargain agreement.

Legal Issues in Remand Proceedings under the Administration of Criminal Justice in Nigeria

The Administration of Criminal Justice Laws in Nigeria that replaced the Criminal Procedure Code and the Criminal Procedure Act has brought “Remand Proceeding” as part of her innovation. This however appears in all regard as legislating and legalising the condemned “Holding Charge”. This innovative provision was greeted with heated disdain, disapproval and unwelcome criticism. It is seen as unconstitutional and contrary to the policy of criminal litigation procedure. It was held to have usurp the right to personal liberty, dignity and fair hearing of an accused defendant whose remand order will be handed down based on anex-parte application. This discourse investigates these assertions based on the principles and laws governing criminal litigation in Nigeria. The objective is to determine the significance velnon of the Remand Proceeding and its constitutionality. This piece founds that, the provisions dealing with remand proceedings are complementary to the constitution and serves the need of criminal litigation to curb the excesses of the prosecuting authorities. The significance therefore outweighs the perceived disadvantages of the procedure.

Why have Indonesian murderers not paid victims' heirs?

The crime of murder results in material and non-material losses for the victims who experience it. The families of victims murder crimes or the heirs are the ones who suffer the most losses following a murder incident that claims the lives of family members or loved ones. Criminal law in Indonesia still does not really prioritize punishment in the form of compensation, so that if heirs want to get compensation they have to submit an application or go through a separate route, this results in the value of substantial justice in criminal law not being upheld, this is proven by the lack of obligations. Compensation in the form of restitution that is mandatory for perpetrators of crimes. To respond it, a new way of upholding substantial justice is needed. By using doctrinal research methods, pre-existing legal sources related to the research theme are searched for. The research results show that several efforts are needed to uphold substantial justice in criminal law, namely the re-actualization of criminal law and the provision of a special forum for heirs to demand compensation directly. In this way, substantial justice can be upheld in criminal law and without going through requests or independent efforts

No Case Submission in Nigerian Criminal Trials: Has Delta State of Nigeria Abolished it?

Serious legal issues have cropped up since the enactment of the Administration of Criminal Justice Act, 2015 in the Federation of Nigeria and the domestication of the law by some or all the States of the Federation. One of the important strictures surrounding the enactment of the law shall dominate this study. It is the doctrine of ‘no case submission.’ For the purpose of this study, in a ruling of a trial Magistrates’ Court sitting at Abbi in Charge No. MAB/22c/2019 Commissioner of Police v. Sunday Usuh the trial Magistrate, His Worship, Edema Doris (Mrs.) Senior Magistrate Grade 1, ruled on the 27th day of May, 2023 that ‘The most recent law of the State which is the Administration of Criminal Justice Law does not make provision of a no case submission. The law does not entertain it. So therefore the defendant is called upon to open his defence in accordance with section 492(3) of the ACJL 2017. The matter is adjourned to the 24th day of June, 2022 for defence.’ Is it true? The facts of the case in Charge No MAB/22c/2019 Commissioner of Police v. Sunday Usuh shall be extensively considered in this discourse. Can a State law do away with the fundamental rights of a citizen as guaranteed by the provisions of the 1999 Constitution of the Federal Republic of Nigeria and notorious judicial precedence or case law on the point of law? This paper which adopts the doctrinal method seeks to review the Administration of Criminal Justice Law, 2017 of Delta State vis-à-vis the Administration of Criminal Justice Act, 2015, Laws of the Federation of Nigeria and the provision of section 36 of the Constitution of the Federal Republic of Nigeria, 1999. It will also consider the impact of the State law on judicial precedence and the constitutional rights of a defendant to appeal against any ruling not favourable to him. It concludes that the law is irregular and contrary to well established constitutional provisions and recondite principles of procedural law and should be amended.

State Incarceration Policy in the U.S. Federal System: Assessing Recent Approaches to Reducing Incarceration Rates

Abstract Although scholarship analyzing U.S. incarceration policy generally focuses on the federal government and federal criminal justice laws, state and local governments are principally responsible for the criminal justice strategy and tactics utilized within their jurisdictions, and that determines the size of state correctional populations. The overwhelming majority of the total U.S. prison population is under the jurisdiction of state correctional authorities. Since 2010, forty-six states have reduced their prison populations, but the efficacy of these reforms and interventions has varied considerably. Utilizing a series of case studies, I analyze a range of state approaches to reducing the prison population and consider the effectiveness of these policies. The most effective approaches have focused on reducing prison admissions, creating or expanding early release opportunities, and decreasing readmission of conditional release violators.

Traditional Justice Systems in the Nigerian Administration of Justice: Lessons from Kenya

The Nigerian administration of justice is facing many challenges such as congestion of cases in the courts, delays in the prompt resolution of cases, corruption in the formal justice system, a punitive and retributive approach to crime with little or no room for restitution and reparation of victims of crimes, as well as the adversarial, hostile, and technical nature of litigation. Although the federal government and some states have made efforts in respect of criminal matters by the enactment of the Administration of Criminal Justice Act (ACJA) and Administration of Criminal Justice Laws (ACJL) traditional justice systems can effectively ameliorate these challenges in the resolution of both civil and criminal matters. However, the potential benefits of the effective application and operation of traditional justice systems in Nigeria are hindered by their restriction to civil disputes, the lack of a clear and specific legal and policy framework, scant regard for procedural justice, inadequate or lacking of enforcement mechanisms and a retributive and punitive approach of the criminal justice system. This article analyses the nature of the Nigerian traditional justice systems and their relationship with alternative dispute resolution (ADR) mechanisms to see how ADR could complement the Nigerian administration of justice. The article further examines the challenges of the Nigerian administration of justice and the practice of traditional justice systems in Kenya to draw lessons for Nigeria. The article argues that the reconciliatory and restorative focus of tranditional justice systems could help resolve some of the challenges facing the Nigerian administration of justice. The article suggests legal, policy, and institutional reforms and their integration for effective application in Nigeria.

Restorative Justice in the Application of Criminal Law

Restorative justice in accordance with the Pancasila way of life. Restorative justice in criminal law is an alternative for resolving criminal cases through a mediation process. Deliberation by involving the criminal acts, victim, family, and other related parties to jointly create a fair agreement between the perpetrator and the victim for the restoration of the situation as before. This research uses normative juridical, namely by reviewing or analyzing legal materials, especially primary legal materials and secondary legal materials by understanding law as a set of positive rules or norms in Indonesia. Restorative justice has been regulated in the Draft Criminal Code which is a hope that will come true. The position of the Criminal Code which is a general provision for criminal legislation outside the Criminal Code will make the position of restorative justice stronger because it will become a benchmark for law enforcement officers to carry out their duties.
 Keywords: restorative, justice, criminal law

Success Stories Program

Following this year’s symposium theme of restorative justice, the UCLA Criminal Justice Law Review is proud to feature works highlighting restorative justice in action. The following pieces come from the Success Stories Program, a restorative justice program borne out California state prisons.

Success Stories Program

Following this year’s symposium theme of restorative justice, the UCLA Criminal Justice Law Review is proud to feature works highlighting restorative justice in action. The following pieces come from the Success Stories Program, a restorative justice program borne out California state prisons.

Examining the Role of Judicial Officers in Administering and Preventing Abuse of Plea Bargain as a Prosecutorial Strategy in Nigeria

Stakeholders in administration of criminal justice system have been critical of the concept of plea bargain. The complaint is that it promotes corruption because of its leniency to corrupt politicians and fraudulent businessmen and women owing to its abuse. Some critics of plea bargain argue that a system of negotiated criminal justice undermines deterrence as one major aim of criminal sanctions. Others maintain that repeat offenders who are familiar with the workings of the criminal justice system are able to negotiate more favourable sentences than first offenders. Still, others view plea bargain as benefiting only the rich since the poor hardly negotiate their charges and sentences. This paper argues that since a trial court has the final say on plea bargain agreement, there is no logical basis for fear of its abuse by parties to it unless the judiciary also lends its courts to corrupt practices. Plea bargain is open to every offender with equal opportunity for legal representation. The paper examines the importance of plea bargain and the role of judicial officers in its implementation. It concludes that courts are firmly in control of trials based on negotiated pleas as well as regular criminal trials, and are able to guide against abuse of this vital prosecutorial strategy. The paper recommends, inter alia, inserting express provisions in the criminal procedural laws empowering judicial officers to bar parties to criminal proceedings and their representatives from abandoning negotiated pleas. Doctrinal method of research is used in collating and analysing relevant sections of the Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999), Administration of Criminal Justice Law of Lagos State 2021 (ACJL Lagos), the Administration of Criminal Justice Act 2015 (ACJA), judicial authorities, and learned articles.

СПРАВЕДЛИВОСТЬ КАК ЦЕЛЬ УГОЛОВНОГО ПРАВА: ОБЩЕТЕОРЕТИЧЕСКИЙ И МЕТОДОЛОГИЧЕСКИЙ КОНТЕКСТЫ

This article aims to identify the key theoretical and methodological challenges associated with justice in criminal law and to find possible ways of overcoming them. Using the main principles of social philosophy and theory of law, the relationship between justice and law and the content of justice in criminal law were considered. It was demonstrated that justice must be pursued as an ultimate social goal of positive law, including criminal law: justice is a qualitative state of social relations when every person can fulfill their potential and is paid according to the public benefit from their work, and senior positions are held depending on the level of expertise, experiences, and meritorious service. Criminal law defines what activities are criminal, as well as specifies possible penalties to correct the convicted person’s behavior and prevent future crimes. These challenges should be the subject of in-depth analysis taking into account the achievements of Soviet criminal law and corrective labor legislation. The results obtained are of practical importance because they can be useful in building a system of criminal law measures to administer justice.

Advancing Remote Court Proceedings in Nigeria: Lessons From other Jurisdictions

The adoption of remote or virtual court hearing is still being debated in Nigeria as the myriads of challenges posed by the innovation infuses even more fear for stakeholders. However, abandoning a progressive innovation may only hinder future innovation as the law may trail behind innovations habitually. There is therefore a need to reassess the existing framework for remote or virtual court hearing in Nigeria and consider necessary reforms. This paper seeks to explore the legal framework for virtual court hearing in Nigeria whilst elaborating on the rules governing virtual court hearing in other jurisdictions. The qualitative methodology is adopted in a bid to derive lessons from these jurisdictions and recommend legal reforms and/or amendments of laws for the proper functioning of Remote Court Proceedings (RCP) in Nigeria. The paper found that there needs to be a deliberate attempt to define open courts to include virtual courts in Nigeria whilst legal amendments are required in the Evidence Act, Constitution, Administration of Criminal Justice Laws to enable fair hearing during RCP. Keywords: Remote Court, Virtual Court, RCP, Proceedings, Technology

The Role of the Ministry of Justice in the Implementation of the Plateau State Administration of Criminal Justice Law, 2018: Successes and Challenges

The Role of the Ministry of Justice in the Implementation of the Plateau State Administration of Criminal Justice Law, 2018: Successes and Challenges

The Prosecutorial Power of the Police under the Kaduna State Administration of Criminal Justice Law, 2017 vis-à-vis the Administration of Criminal Justice Act, 2015 and the Police Act 2020: An Exposition

The Prosecutorial Power of the Police under the Kaduna State Administration of Criminal Justice Law, 2017 vis-à-vis the Administration of Criminal Justice Act, 2015 and the Police Act 2020: An Exposition

THE RULE OF THE PRINCIPLE OF JUSTICE AND THE PROBLEMS OF ITS IMPLEMENTATION IN THE CRIMINAL LAW OF RUSSIA

The article is devoted to the analysis of different aspects of the principle of justice in criminal law equalizing and distributing on the basis of the analysis of philosophical and legal thought. The substantiation of the supremacy of the principle of justice is presented. Other criminal law principles (criminal responsibility, humanism, equality of citizens before the law and the court) are analyzed as auxiliary, fully realizing the justice of the law and punishment. The connection between the principles of justice and legality, equality of citizens before the law and humanism, guilty responsibility is demonstrated. It is concluded that the equality of citizens before the law and humanism are different aspects of justice. Under the influence of the principle of justice, a circle of criminal acts is formed. A fair procedure for bringing guilty persons to criminal responsibility is based on strict observance of the principle of guilt, humane attitude to the guilty.
 The article analyzes certain provisions of criminal legislation for compliance with the principle of justice, considers the procedure for implementing legal principles in practice. In order to substantiate the conclusions of the study, a violation of the idea of equality, and, as a result, the ideology of justice, was revealed. Thus, the fact that aggravating the criminal penalty, which is subject to mandatory application, as the commission of an intentional crime by an internal affairs officer contradicts the idea of equality (paragraph «o» of part 1 of article 63 of the Criminal Code of the Russian Federation). Article 88 of the Criminal Code of the Russian Federation provides for the possibility of imposing a criminal penalty in the form of a fine on the parents, legal representatives of a minor who has committed a crime, which contradicts the principle of guilt and is unfair.
 The identity of criminal-legal repression, which is applied both for a single crime and for repeated criminal behavior, should be considered unfair. The ineffectiveness of the criminal law prescriptions of the law on the imposition of punishment for a set of crimes was revealed on the basis of the analysis of judicial practice materials.

Concretization of the Idea of Justice in Criminal Law and Justice: Conceptual and Technical-Legal Aspects

Concretization of the Idea of Justice in Criminal Law and Justice: Conceptual and Technical-Legal Aspects

System of criminal legal principles

Modern globalization processes consisting in transnational integration concern not only politics, economy, and culture but also the sphere of combating crime. In the fight against international criminal manifestations, it is necessary to consolidate powerful stabilising factors. One of these factors is criminal law principles, which are a kind of prism through which national legislation is assessed and the practice of its application is adjusted. In this regard, the question of systematising the principles of criminal law is of great importance. Purpose of the research: formulation of the authors’ approach to the problem of systematisation of criminal law principles. Methods: the research was based on the general philosophical dialectical method of scientific knowledge. Besides, the historical and legal, structured system method and formal and logical methods were used. Results and novelty: resulting from the study, the authors’ approach to the system of criminal law principles based on their interrelation, interdependence, and mutual influence is presented. The proposed separation of principles for the first time in the Russian criminal law doctrine reflects both horizontal and vertical classification. Horizontally, criminal law principles are divided into extraordinary (principle of justice), ordinary (principles of equality, humanism, and guilt), and substantive (principle of legality). The extraordinary principle of justice predetermines the content of other principles of criminal law. The ordinary principles of equality, humanism, and guilt determine the implementation of the principle of justice in criminal law. The substantive principle of legality is a unified basis for consolidating the provisions of the principles of criminal law in criminal legislation. This understanding of the principles of criminal law allows building their hierarchy. Vertically, the first place, due to its importance, is assigned to the principle of justice, the second belongs to the principle of equality, the third focuses on the principle of humanism, the fourth concentrates on the principle of guilt and, finally, the principle of legality completes the system.