Mandatory Minimum Research Articles

From Gross Disproportionality to Human Dignity: Redefining Section 12 in the Context of Mandatory Minimum Sentences

In this short paper, we contend that human dignity must remain at the heart of the section 12 analysis, and should be strengthened in future cases that will be tackling the remaining mandatory minimums. In so doing, we critically examine the Supreme Court’s recent development of the section 12 framework, particularly in light of the 2023 mandatory minimum jurisprudence, with a specific emphasis on the concept of human dignity. The analysis centers on the role of reasonable hypotheticals in advancing the primary objective of section 12 — safeguarding human dignity — by scrutinizing the three pivotal components of the gross disproportionality analysis. We suggest that the section 12 analysis focuses on proportionality and human dignity rather than the current “gross disproportionality” standard in assessing what constitutes cruel and unusual punishment. These suggestions are underpinned by an approach that considers proportionality a principle rooted in human dignity. Nevertheless, proportionality has its limits and therefore section 12 should be complemented by an approach that takes into account prison conditions and the effects of imprisonment on marginalized groups, which are rooted in inequalities. Finally, the analysis questions the third component of the gross disproportionality analysis, which calls for deference to the legislature in order to prioritize objectives that instrumentalize the individual and are contrary to human dignity. These objectives are problematic, we suggest, and best addressed within section 1 of the Charter.

When Socialist Chinese Law Meets Common Law Interpretation: Mandatory Sentencing and Mitigation Under the Hong Kong National Security Law

Abstract In HKSAR v Lui Sai Yu [2023] HKCFA 26, the Hong Kong Court of Final Appeal (CFA) delivered its first judgment on the mandatory sentencing regime under the newly introduced National Security Law (NSL). Adopting a common law approach to interpreting the NSL, the CFA held that mitigating factors not listed in the NSL cannot bring about a sentence below the minimum prescribed by the relevant provision. In this article, we propose an alternative approach to interpreting the NSL. We argue that, contrary to the CFA’s rejection of any reference to Mainland Chinese laws in constructing the NSL, both a common law purposive approach and the principle of ‘convergence, compatibility and complementarity’—one of the working principles in the enactment of NSL—would support such reference. The implications of our proposed approach would be to (i) recognize that the sui generis nature of the NSL, being a Chinese national law applied in its Special Administrative Region of Hong Kong, necessitates the consideration of relevant Chinese legal norms; and (ii) allow for a broader range of mitigating factors—those recognized by both Hong Kong common law and Mainland Chinese law—to be applied to the minimum sentencing regime in the interest of fairer and more principled outcomes for defendants.

Criminal Fine In The Crime Of Alcoholic Drinks Smuggling

The aim of this research is to determine the criminal sanctions imposed by fines on perpetrators of the crime of smuggling alcoholic beverages. The method used in this research is a normative legal research method using a statute problem approach. The results of this research are that the forms of sanctions given to perpetrators of the crime of smuggling alcoholic beverages are categorized based on the smuggling carried out in the import and/or export sector. Smuggling carried out in the import sector is subject to sanctions with a minimum imprisonment of 1 (one) year and a maximum imprisonment of 10 (ten) years and a fine of at least IDR 50,000,000.00 (fifty million rupiah) and a maximum of IDR 5,000. 000,000.00 (five billion rupiah), and smuggling in the export sector with a minimum prison sentence of 1 (one) year and a maximum prison sentence of 10 (ten) years and a fine of at least Rp. 50,000,000.00 (fifty million rupiah ) and a maximum of IDR 5,000,000,000.00 (five billion rupiah).

TINDER SWINDLERS: SUBSTANTIVE AND PROCEDURAL MATTERS PERTAINING TO ONLINE DATING FRAUD UNDER THE COMMON LAW AND THE CYBERCRIMES ACT

The proliferation of online dating scams or fraud has presented a significant threat to users of online dating platforms globally. Scammers misrepresent themselves as would-be lovers, usually employing false identities, in order to defraud unsuspecting victims of large sums of money. Not only do romance scammers cause great financial harm to their victims, but also often leave victims with long-term psychological scars. As both the common law and the Cybercrimes Act 19 of 2020 address instances of fraud, both may potentially be employed to address the issue of online dating fraud. The State may charge an accused with both offences, but a conviction based on both would probably constitute a duplication of convictions. The offence of cyber fraud under the Cybercrimes Act may however be more onerous to prove, owing to the particular way that cyber fraud must be committed under section 8. A conviction based on the Cybercrimes Act may, however, be more attractive to the State as certain minimum sentences apply, depending on the amount defrauded, whether the accused was a law enforcement officer, whether someone was in charge of or had access to the data belonging to others, and whether the offence was committed in concert with others.

Criminal Justice Reform: Examining Strategies for Reducing Mass Incarceration and Promoting Rehabilitation

The pressing issue of mass incarceration and explores strategies for criminal justice reform aimed at reducing incarceration rates and promoting rehabilitation. It highlights the social, economic, and human costs of mass incarceration and discusses the need for evidence-based policies and innovative approaches to address systemic issues within the criminal justice system. Mass incarceration has reached unprecedented levels in many countries, including the United States, where it has disproportionately impacted communities of color and contributed to cycles of poverty, inequality, and recidivism. The abstract discusses the various factors driving mass incarceration, such as mandatory minimum sentences, three-strikes laws, disparities in sentencing, and the war on drugs.

Penanggulangan Terhadap Tindak Pidana Pertambangan Mineral Dan Batubara di Wilayah Hukum Kepolisian Daerah Gorontalo

Community Service Activities to examine countermeasures against mineral and coal mining crimes in the jurisdiction of the Gorontalo Regional Police and the Inhibiting Factors. The activity method is field study, the research method used in the research is empirical with qualitative descriptive data analysis which describes and describes field data and facts. Based on the results of the research, the handling of mineral and coal mining crimes in the jurisdiction of the Gorontalo Regional Police is carried out by carrying out repressive efforts. This activity includes a series of actions aimed at uncovering cases that have occurred, where the stages start with a series of inquiries, inquiries and other coercive measures authorized according to the law. Carrying out preventive efforts, including a series of activities aimed at preventing crimes before they occur, where investigators make arrangements for security, including conducting patrols at locations thought to contain indications of criminal acts. In relation to criminal acts, especially mining, the Gorontalo Regional Police provides guidance and encouragement to the community to actively participate in efforts to prevent and ward off crime, by reporting suspicious incidents; and Carrying out pre-emptive efforts, starting from conducting an analysis of regional conditions and potential vulnerabilities, collaborating with related elements, to anticipate violations or crimes. The inhibiting factors in dealing with mineral and coal mining crimes in the Gorontalo Regional Police are: Legal Content Factor, where the imposition of sanctions does not include the threat of a minimum sentence, thus affecting the police, public prosecutors and judges' decisions to be less strong; Law Enforcement Factor, where officials can be a supporting factor in the implementation of the law, or actually become a protector for the perpetrator; Community Cultural Factors relate to the basic values ​​of what is good and what is bad, in order to support the implementation of law, which originates from the community's legal understanding and attitudes or behavior. Facilities and facilities factors, where the police have constraints in terms of the number of competent human resources, thereby maximizing the role of PPNS investigators from other agencies.

The Importance of Analysis of Judicial Circumstances in the Sentence Dosimetry Process

The Constitution plays an important role as a point of reference for the critical analysis of the criminal system, not only because it derives from the legal assets susceptible to punitive protection, but also and among other reasons, because the principles enshrined as a government norm in the Penal Code governing The imposition of sanctions is a clear development of the constitutional text and doctrine that the Constitutional Court has been building with its pronouncements, in the form that criminal law must acquire. The dosimetry of punishment in Brazil takes a three-step approach, pushing the system of fixed sanctions implemented by the legislature or the full discretion of the judge, promoting, on the other hand, a distribution of functions between the two, as he chooses the minimum and maximum sentence levels and dosage parameters, and this determines the sanction in the specific case from the legal criteria. In this sense, the present research aims to analyze the importance of analyzing judicial circumstances in the process of penalty dosimetry. The specific objectives are: to present a brief history of criminal legislation in Brazil, to review the most recent literature on the application of the penalty and its principles, to analyze the relationship between the dosimetry of the penalty and judicial circumstances and to point out cases in the jurisprudence that materialize the revised theory. Thus, given the relevance of the theme in the current legal scenario, the research is justified by discussing a contemporary theme. Through research on the principles of exceptionality, state of innocence, motivation of decisions and proportionality and the dosimetry of the penalty, possible judgments of the judge that relate the dosimetry of the penalty with the principles of human rights will be discussed. The judge should take charge of the evidence produced in relation to the facts that, in his opinion, influence the minor or major measure of the exact penalty to be imposed. The lack of motivation currently constitutes a violation of the constitutional guarantee of due process and absolute grounds for invalidity under the Criminal Procedure Code.

Criminal Justice Reform: Examining Strategies for Reducing Mass Incarceration and Promoting Rehabilitation

The pressing issue of mass incarceration and explores strategies for criminal justice reform aimed at reducing incarceration rates and promoting rehabilitation. It highlights the social, economic, and human costs of mass incarceration and discusses the need for evidence-based policies and innovative approaches to address systemic issues within the criminal justice system. Mass incarceration has reached unprecedented levels in many countries, including the United States, where it has disproportionately impacted communities of color and contributed to cycles of poverty, inequality, and recidivism. The abstract discusses the various factors driving mass incarceration, such as mandatory minimum sentences, three-strikes laws, disparities in sentencing, and the war on drugs.

Лингвофилософская концепция В.И. Абаева и осетино-кабардино-балкарские идеосеманти-ческие параллели

The article is devoted to the linguophilosophical concept of the outstanding Russian theorist, his-torian and philosopher of language, the largest Iranian scholar Vasily Ivanovich Abaev. The as-pects of the author’s linguophilosophical concept are presented based on two works by V.I. Abaev: “Reflection of the work of consciousness in the lexico-semantic system of language” (1970) and “Language as ideology and language as technique” (1934). In these works, he pays special atten-tion to the problem of the origin of human language. The theory of the origin of language itself, in his opinion, should be based on an optimal scientific theory that proceeds from the correct theo-retical premises and is consistent with the available empirical data. To explain the origin of a lan-guage, it is not the grammar of the language that is important, but the subject–significant vocabu-lary, as he believes that the origin of vocabulary is a single and integral problem, and the origin of grammar is inevitably divided into several particular issues. Language, according to V.I.Abaev, arose not from biological, but from the social needs of a person, from the need to relate things to their collective, to impose their own “brand” on them. Special attention is paid to the concept of ideosemantics, firstly introduced by V.I. Abaev in-to scientific circulation. He distinguishes two types of semantics: small semantics (or signal, technical), which includes a mandatory minimum of semantic functions that determine the mod-ern communicative use of the word, and large semantics, which is the sum of those concomitant cognitive and emotional representations that reflect the complex inner life of the word in its past and present. He defined this broader understanding of semantics by the term “ideosemantics”. Id-eosemantics, according to V. Abaev, is the most important criterion for the historical characteriza-tion of linguistic phenomena. V. Abaev sees the value of language at an early stage of its for-mation in its “ethnodemarkation function”. In conclusion, the article presents ideosemantic parallels in three genetically and structurally diverse languages: Ossetian, Kabardino-Circassian and Karachay-Balkar.

Does Racial Bias Explain the Black-White Sentencing Gap across U.S. Courts?

Abstract It is widely speculated that prejudicial attitudes and implicit biases are fundamental to understanding racial disparities in criminal punishment. Yet surprisingly little research links measures of racial bias to data on criminal court decision-making. This article fills this gap by combining multiple aggregate measures of implicit and explicit racial bias with data from U.S. federal courts to examine whether racial disparities in sentencing are associated with prejudicial attitudes within the surrounding court context. We find no evidence that racial biases, whether implicit or explicit, significantly influence racial sentencing disparities across U.S. district courts. Nor do we find evidence that racial biases yield greater sentencing disparities in supplementary analyses using county-level court data. We do, however, find suggestive evidence that the prosecutorial application of mandatory minimums is sensitive to the level of racial bias within a court’s jurisdiction. Specifically, we find that Black defendants are disproportionately charged in districts with greater explicit racial animus.

Life After Bars: A Narrative-Case Study of Ex-convicts

In the Philippines, ex-convicts face severe hurdles during reintegration, including public stigma, restricted work opportunities, insufficient support, and discriminatory behaviors, all of which impede a smooth return to society. This qualitative narrative case study investigates the psychological, social, and economic aspects of ex-convicts’ lives after jail. The Life Course Perspective is used as the study’s theoretical framework, acknowledging the importance of personal, societal, and historical elements in individual development. Six successfully reintegrated participants, each with a minimum five-year prison sentence, constituted the basis for in-depth interviews conducted in a quiet and secure atmosphere using snowball sampling. The study sought to explore ex-convicts’ issues, coping methods, life realizations, and viable therapeutic programs. The findings highlight the numerous challenges, such as societal stigma, economic constraints, and disrupted social bonds. Coping methods, which include spiritual rehabilitation and emotional acceptance, emerge as critical components of the reintegration process. Life realizations become transforming forces, characterized by a dedication to positive change and social contributions, which is frequently motivated by familial support and a desire to protect loved ones. For effective reintegration, the study underlines the importance of public acceptance, tailored interventions, and support networks. It finds that addressing these issues, as well as encouraging familial stability, boosting community involvement, and engaging employers, are critical to reducing recidivism and facilitating long-term rehabilitation. Recommendations urge for coordinated efforts from families, communities, and businesses, emphasizing the importance of a complete strategy to assisting ex-convicts on their path to successful society reintegration.

Disparitas Pemidanaan dalam Tindak Pidana Korupsi yang Mengakibatkan Kerugian Keuangan Negara

This study aims to analyze legal factors and factors of law enforcement officials that influence the disparity in sentencing for corruption which results in state losses. The type of research used is empirical normative legal research. The results of the study show that (1) the legal factor in the presence of disparity decisions regarding corruption crimes has not been optimal because the minimum criminal sanctions in the corruption law cause disparity in sentencing which is quite disturbing due to the non-uniformity in the provision of minimum sentences for similar offenses. (2) the factor of law enforcement officials as the cause of the disparity in sentencing of corruption case decisions is very clearly seen and felt to be very unfair to each other, there is no clear guideline regarding the prevention of disparity in corruption criminal rulings so law enforcement officers exercise their power to decide similar offenses the pretext of the judicial power law.

The War on Drugs and an Incarcerated Latina Mother: Yraida's Story

Abstract Since the 1990s, when mandatory sentences for drug related crimes were first imposed, Blacks and Hispanics have been disproportionately given lengthier prison terms. Latinas have been especially affected by the harsh consequences of the war on drugs, as they have been detained in proportionally larger numbers. In this article, using the case of Yraida Guanipa, I explore the effects of the war on drugs on a Latina. Yraida Guanipa was the mother of two boys, aged 4 and 3 when she was sentenced in 1998 to 151 months even though she was a first-time non-violent offender. The magnitude of her sentence particularly affected her role as mother of two very young children. During five years (1998 – 2003) out of her 13-year detention, Yraida wrote to the late Illinois Senator Paul Simon (1928 – 2003). The close textual analysis of her letters provides a unique perspective on the toll of the war of drugs. Yraida's correspondence shows how she fiercely negotiated motherhood and became an activist for prison reform.

Do Mandatory Minimum Penalties and Penalty Relief Work? Evidence from California's Clean Water Program

Do Mandatory Minimum Penalties and Penalty Relief Work? Evidence from California's Clean Water Program

Resource sufficiency of large capacity LNG projects in Russia

Relevance. Qualitative and quantitative transformations taken place under the impact of a number of interconnected facts, destabilizing for the world economy. Contemporary conditions direct gas producing countries, including Russia, towards enhancing the competitive advantages to maintain their positions in the world gas market, first of all, towards increasing the share of liquefied natural gas in the market. It is impossible without sufficient resource base to expand production of operating large capacity LNG projects. Aim. To analyze the effect of management-economic mechanisms on the expansion of resource sufficiency to provide the production of liquefied natural gas. Object. Large capacity LNG projects. Subject. Financial and fiscal framework applied for implementation of large capacity LNG projects. Methods. Empirical and economic-statistical. Results. Institutional incentives for provision of resource sufficiency have allowed the authors to reveal different approaches to stimulating resource sufficiency depending on the business tax systems, implementing LNG projects. The paper demonstrates differentiation in natural resource users’ reaction to tax benefits. Using licensing system a resource user intensifies his activities in development of hard-to-recover reserves, which increases resource sufficiency of LNG projects. Whereas using treaty system (which is, in fact, incentive framework of taxation) the effect is insignificant to stimulate geological exploration. This in future may occur as a decrease in liquefied natural gas production as well as possible negative social-economic consequences in a region. The authors suggest legislative consolidation for business operating in the condition of production sharing agreement, of mandatory minimum – 10 % of net profit spent for geological exploration.

Mandatory minimum sentencing and its effect on sentencing distributions: Evidence from Canada

AbstractWhether judges and prosecutors should be given full discretionary power in sentencing or mandatory minimum sentences be imposed remains a fiercely debated topic. In this paper, we examine the impact of Canada's 2005 introduction of minimum sentences on sexual offences against children and child pornography on the distribution of sentence lengths using administrative data containing the universe of these offences that occurred between 2003 and 2007. We find that the average sentence length for affected crimes at times increased by substantially more than the newly imposed minimum, and effects of the policy appear even in the middle and upper portions of the sentencing distribution. These increases occur immediately following the policy change, signalling that judges and prosecutors quickly change their sentencing behaviour after the implementation of mandatory minimum sentences. These lengthier sentences have significant implications for the estimation of the fiscal costs of minimum sentencing policies.

Role of serum markers in diagnosis of exacerbations of sarcoidosis

In order to improve the diagnosis of exacerbation and activity of sarcoidosis in patients receiving complex treatment, including corticosteroids, 303 patients with respiratory sarcoidosis were examined at the initial visit (before treatment) and every 2 months of treatment for 2 years. Group 1–193 patients without exacerbation of sarcoidosis; group 2–51 patients with exacerbation of sarcoidosis, who did not take corticosteroids (GCS); group 3–59 patients with exacerbation of sarcoidosis, long-term taking corticosteroids. In order to improve the diagnosis of exacerbation and activity of sarcoidosis in patients receiving complex treatment, including glucocorticosteroids, 303 patients with respiratory sarcoidosis were examined at the initial visit (before treatment) and every 2 months of treatment for 2 years. Group 1–193 patients without exacerbation; group 2–51 patients with exacerbation who did not take corticosteroids (GCS); group 3–59 patients with exacerbation, long-term taking corticosteroids. Conducted clinical and biochemical blood tests, computed tomography of the respiratory organs, spirography, echocardiography, electrocardiography at rest. Changes in the following serum markers were studied: free radicals (RwR), resistance to oxidative stress calculated by trolox equivalent (UcE), angiotensin-converting enzyme (ACE), adenosine deaminase (ADA), the correlation coefficient (CC) was calculated according to the developed formula (patent): CC = ACE/ADA in arbitrary units (KKnorm = 1.2–2.4), markers of lipid metabolism disorders were determined, to assess the activity of endogenous inflammation, the indicator of lipoidosis activity (PAL) was calculated according to the previously developed formula (patent): PAL = TC/LDLxc + TGL. Before treatment, 100 % of patients with sarcoidosis showed signs of moderate endogenous inflammation, an active granulomatous process, hypoxemia, and a decrease in the body’s antioxidant defense. The sensitivity of the serum adenosine deaminase (ADA) enzyme in exacerbations of sarcoidosis was 31 %, and the specificity was 48 %. The correlation coefficient (CC) had a sensitivity of 85.0 %; specificity 78.8 %; diagnostic efficiency of 80.0 % and higher clinical value than ACE, ADA, PAL, SVR, UKO. Thus, the serum enzyme adenosine deaminase (ADA) should be included in the mandatory minimum of laboratory methods in patients with sarcoidosis.

Legal Reconstruction of Special Criminal Sanctions against Corruption Based on Justice Values

The research aims to analyze and discover the weaknesses in regulations on criminal sanctions against perpetrators of criminal acts of corruption at this time, and the reconstruction of regulations on criminal sanctions against perpetrators of criminal acts of corruption based on the value of justice using a constructivism paradigm, through direct interviews with informants empirically supported with studies literature through theoretical steps. The research results show that the act of abuse of authority is a form or manifestation of an unlawful act regulated in Article 3 of Law Number 31 of 1999 jo. Law Number 20 of 2001. From the principles of legislative regulation, one of the reasons for the difference in criminal threats in Article 2 and Article 3 of Law Number 31 of 1999 Jo. Law Number 20 of 2001 is the principle of lex specialis derogat lex generalis (specific laws exclude general laws). The difference in the threat of minimum and maximum sentences in Article 2 and Article 3 of the Corruption Crime Law results in Judges imposing different sentences for the same case. Reconstruction of criminal sanctions against perpetrators of criminal acts of corruption based on the value of justice in Article 3 of the Corruption Eradication Law, namely: Every person who, with the aim of benefiting himself or another person or a corporation, abuses the authority, opportunity or means available to him because position or position that could harm state finances or the state economy, shall be punished with life imprisonment or imprisonment for a minimum of 5 (five) years and a maximum of 20 (twenty) years and/or a fine of at least Rp. 50,000,000,- (fifty million rupiah) and a maximum of Rp. 1,000,000,000,- (one billion rupiah).

Sanksi Pidana terhadap Pelaku Pedofilia Perspektif Undang-Undang Nomor 17 Tahun 2016 Tentang Perlindungan Anak dan Hukum Pidana Islam

Pedophilia is an outlet for sexual desires by taking underage children as objects. Acts of sexual violence are very disturbing because they can cause long-term physical and psychological trauma, and victims may become perpetrators in the future. Children as the next generation and the embryo of the nation's hopes have the same rights to live, grow and develop optimally and receive legal protection. In order to improve the handling of cases of sexual violence against children, in 2016 the government issued Law Number 17 of 2016 and it was passed as the second amendment to Law Number 23 of 2002 concerning Child Protection. The aim of this research is to find out what the criminal rules and sanctions are according to Law Number 17 of 2016 concerning Child Protection and Islamic Criminal Law and to compare the two rules. This research uses a type of library research (library research) with several approaches, a statutory approach (legislative approach), a comparative approach (comparative approach), and a conceptual approach. The results of this research are criminal sanctions for pedophilia perpetrators according to the law No. 17 of 2016 concerning Child Protection provides legal sanctions in the form of a minimum prison sentence of 5 years and a maximum of 15 years or a fine of Rp. 5,000,000,000.00 (five billion). According to Islamic criminal law, heterosexual pedophiles are subject to sanctions in the form of adultery, for homosexual pedophiles the death penalty, and takzir for pedophiles who do not fulfill several evidentiary requirements. The similarity between the two is that they both impose heavy sanctions on perpetrators, and the only difference is in terms of law enforcement.

Hanging and the mandatory death penalty in Africa: the significance of Rajabu v Tanzania

In November 2019, the African Court on Human and Peoples’ Rights in Rajabu v Tanzania issued its first major decision related to the substance of the death penalty. The Court found that Tanzania’s mandatory death penalty violated article 4 of the African Charter on Human and Peoples’ Rights (the right to life), because it constituted an ‘arbitrary’ deprivation of life. This decision accords with case law from other international treaty bodies and judgments of domestic courts. In addition, the Court found that hanging as a method of execution was ‘inherently degrading,’ a notable finding because most retentionist African countries still use hanging. By assessing the mandatory death penalty under article 4 instead of article 7 (right to a fair trial), the Court’s holding has limited applicability to other mandatory sentences, but the author contends that the Court should extend this precedent in the future to mandatory life imprisonment. The most important question that remains open is whether article 4 requires an individualised sentencing hearing in every case, including where persons with mandatory death sentences have already had their sentences commuted to imprisonment terms by the president without an opportunity to present mitigating evidence. Rajabu significantly contributes to the erosion of the death penalty in Africa and is an incremental precursor to total abolition under article 4 of the Charter.