Mandatory Minimum Research Articles

Plea Bargain

Plea Bargain

The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts

Abstract Racial inequality in sentencing has decreased substantially over the last decade. In 2009, the average sentencing difference between black and white defendants in federal court was nearly 3 yrs. By 2018, this difference was less than 6 mos. Among drug offenders over this same period, the black–white gap went from 47 mos. down to zero. Yet, despite the fact that racial inequality in the legal system remains at the fore of sociological discourse, these developments remain conspicuously under-evaluated and the underlying processes driving these changes remain unknown. This article fills this gap by applying longitudinal decomposition methods to US District Court data between 2009 and 2018. Three notable findings emerge. First, the declining racial gap was driven, in equal parts, by decreasing black sentences and increasing white sentences. Second, black and white sentences became more equal almost entirely due to changes in observable case characteristics and not due to changes in the treatment of offenders. Third, shifts in the prosecutorial use of mandatory minimums played a critical role in decreasing black–white sentencing inequality.

LEGISLATIVE EROSION OF JUDICIAL DISCRETION IN RELATION TO MURDER WITH EXTENUATING CIRCUMSTANCES IN BOTSWANA: A CRITIQUE OF THE AMENDMENT OF SECTION 203 (2) OF THE PENAL CODE

Murder is an offence that is regarded as atrocious across all civilisations. It is for this reason that some countries, including Botswana, still retain the death penalty for the offence of murder. In April 2018, the parliament of Botswana amended Section 203 (2) of the Penal Code to introduce a minimum mandatory sentence of 15 years imprisonment for murder with extenuating circumstances. This development was applauded in some quarters as an indication that parliament was getting tougher on murder and had delimited the discretion of the judiciary to impose lenient sentences. This paper evaluates the necessity and desirability of the minimum mandatory sentence within the premise of judicial discretion in sentencing. A pre-amendment assessment of the sentencing patterns of the courts of Botswana, in relation to murder with extenuating circumstances, is undertaken with a view of determining whether there was either inexcusable leniency or flagrant disparities. The paper contends that the courts were already effectively self-regulating in their sentencing for murder with extenuating circumstances, and that an intrusive legislative intervention by way of the minimum mandatory sentence was unnecessary. It is maintained that this erosion of judicial discretion is likely to result in injustices in instances where the particular circumstances of a case would have otherwise justified a sentence of less than 15 years imprisonment.

Weinstein on Sentencing

Over more than half a century of service on the federal bench Judge Weinstein has produced reams of articles, speeches, and opinions, attempting to convince higher courts and Congress to recast sentencing law on the basis of fairness. Like any great jurist, Judge Weinstein did not win every battle, but he pursued the ideal of individualized justice with unflagging dedication. In the process, he transformed sentencing law. He brought due process to sentencing by conceiving of and instituting Fatico hearings, and later became among the most powerful voices against mandatory sentencing regimes. Judge Weinstein’s ingenuity always withstood public controversy and criticism. He refused to mete out unduly harsh or unduly lenient sentences, relying instead on a commitment to reasonableness and simple fairness. While Judge Weinstein enjoyed a reputation for compassion and social consciousness, he applied the law faithfully, without disguising the difficulties inherent in the art of judging. He leaves a legacy of intellectual honesty, integrity, and faith in the promise of the law to do justice.

Analysis of Dangerous Mistakes in Discussion Activities

This study aims to describe the analysis of language errors of Baubau 3 High School students in class discussion activities. The research design is descriptive qualitative. Research data analyzes language errors in class discussion activities in the form of use of intonation / tone, diction (choice of words), and sentence structure.The results showed that the form of language error analysis in class X of SMA Negeri 3 Baubau in class discussion activities was the use of intonation consisting of: high intonation, moderate intonation and low intonation. The use of diction (word choice) which consists of: the use of synonymous words, the use of denotation and connotation words, the use of foreign words or terms, the use of popular words and study words, and the use of words of conversation and slang. The use of sentence structure consists of: the use of compulsory sentence structures and the use of sentence structures are not mandatory (where they like). Based on the data obtained regarding the analysis of language errors in class X students in class discussion activities, it can be said that in the use of intonation there are errors in the form of high intonation of 11, intonation is not there and intonation is low as many as 16 errors. In the use of diction there are errors in the use of 40 synonymous words, use of denotations and connotations of 41, use of foreign words or terms as many as 14, use of popular words and study words as many as 3, and the use of 120 words of conversation and slang. Furthermore, the use of sentence structures has errors in the form of mandatory sentence structures that do not exist, and in the sentence structure is not mandatory as many as 156 errors.

Truth, Lies and The Paradox of Plea Bargaining

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system. The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid. The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process. The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining. Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants. If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences. These defendants would lose their ability to avoid the injustices of the system. And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed. Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice. To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform. Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction. Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.

The Multi-Depot Cumulative Vehicle Routing Problem With Mandatory Visit Times and Minimum Delayed Latency

This paper introduces a novel variant of the cumulative vehicle routing problem (CCVRP) that deals with home health care (HHC) logistics. It includes multiple nonfixed depots and emergency trips from patients to the closest depot. The aim is to minimize the system’s delayed latency by satisfying mandatory visit times. Delayed latency corresponds to caregivers’ total overtime hours worked while visiting patients. A new mixed-integer linear programming model is proposed to address this problem. Computational experiments, with more than 165 new benchmark instances, are carried out using the CPLEX and Gurobi MIP solvers. The results indicate that patients’ geographical distribution directly impacts the complexity of the problem. An analysis of the model parameters proves that instances with more depots/vehicles or longer workdays are significantly easier to solve than are original cases. The results show that Gurobi outperforms CPLEX in 55% of the instances analyzed, while CPLEX performs better in only 16% of them. To the best of our knowledge, this is the first VRP that minimizes delayed latency and the first HHC routing study to use a cumulative objective function.

Crime Spree

Crime Spree Desiree Cooper (bio) So many of us walk around believing there's a moral wall between good people and bad people. But in my experience, that wall is permeable, like snow fencing. The slide from law-abiding to lawless can be swift and random. Like a plague. Maybe that's why folks say, "Sam caught a case," rather than "Sam was arrested." It's as if there is no act of volition, no agency in breaking the law. Criminality just infects you while your defenses are down. It can happen to anyone. Toni is a pretty Latina in her forties, the first in her family to earn a bachelor's degree. When she was seventeen, she and her boyfriend schemed to sell ten pounds of marijuana. (They never had drugs, only old clothes in a garbage bag.) Toni, the getaway driver, has never denied her culpability in the plan, but claims she had no idea that her boyfriend was armed. She alleged that she dropped him off with the bag in Southwest Detroit to meet the buyers. When she circled back to pick him up, she heard gunshots. "There weren't supposed to be gunshots," she said. "I drove away in terror." Several days later, police came to her job, arrested her, and put her in the back of a squad car. That's when she found out that she was an accomplice to a marijuana deal, turned robbery, turned murder. The shootout had [End Page 117] left one teen dead and his twin permanently paralyzed. Toni prayed that it wasn't true (she was, and still is, a devout Catholic). She worried about what her mother would do when she found out Toni had been arrested, worried about who would care for her disabled brother if she were behind bars. But her tears didn't erase the fact that her actions had set in motion the shooting of two teens. It was the 1990s and children over the age of fifteen routinely were dubbed super-predators by the media and tried as adults. Toni was interrogated for hours, denied the simple dignity of a tampon, given incompetent legal representation, and convicted of murder. In 1991, she was sentenced more heavily than her boyfriend who'd pulled the trigger: twenty-five to fifty years in prison. In prison, Toni was housed with adults. Some of the women became like mothers and sisters. She was sexually humiliated and raped by guards. But she studied hard and earned her bachelor's degree and a bevy of certifications. She prayed and wrote and learned. She expressed profound remorse, apologized for her role in the shootings, and walked the straight and narrow despite the hopelessness of mandatory minimums. In the mid-2000s, her cousin sent me a letter to the Detroit Free Press where I was a columnist. He begged me to help get her sentence commuted. By the time I met Toni and learned her life story, she'd already served more than fifteen years. I wasn't sure if that was a fair exchange for the taking of a life. But I was sure that Toni would never commit a crime again. I decided to help. It took years, but her sentence was commuted in 2008. Today, Toni is a soft-spoken PTA mom with a bubbly, raven-haired daughter and a soft spot for animals. People don't know that for years, Toni kept her bathroom door open in her suburban home, forgetting that on the outside, people are allowed to piss in private. Her neighbors don't know that the headlights beaming through her bedroom blinds at night can send her shrieking in fear—they look too much like the flashlight beams of hard-cocked security guards. To most people, Toni is just one of us. The late 1980s was the height of Detroit's crack epidemic. The unemployment rate was among the highest in the nation, as was the rate of violent crimes. There's no getting around it: Detroit was a dangerous town. [End Page 118] In 1988, I left the practice of law and went to work for a Detroit nonprofit that helped address the...

Executive Revision of Minimum Sentences

Executive Revision of Minimum Sentences

코로나19에 따른 해양계 학교의 승선실습 법제도 개선 연구

Under the recent worldwide spread of COVID-19, the maritime schools need to review the mandatory minimum requirements for issuing a certification of officers through the suspension and resumption of on-board training. The domestic law requires at least one year of sea-going services for graduates of maritime schools to issue a certification of officers, and requires at least six months of on-board training during their sea-going services. However, STCW allows online education methods such as e-learning by approval of the competent authority for one year

Female sexual offenders and judicial decision-making

Background: Research examining female sexual offending is limited, and the profile of this unique offender group is not well understood. Female sexual offending has largely been identified as a rare occurrence, typically perpetrated in the context of an unhealthy relationship with a paraphilic male counterpart. Given recent changes in law and minimum sentences for sexual offences—particularly in relation to child pornography and child luring offences—it remains unknown how this has impacted sentencing of female offenders charged with sexual offences. Objectives: The goal of this study is to better understand female offenders convicted of sexual offences and their offence characteristics. Additionally, it seeks to identify patterns in judges’ decision-making with respect to aggravating and mitigating factors that impact sentencing decisions.Methods: A sample of 26 judges’ sentencing decisions between 2000 and 2017 were obtained to investigate the Canadian female sexual offender (FSO) as she enters the justice system. Results: In the study sample, high rates of psychopathology and childhood trauma were important features of this offender group. Offences tended to occur over extended periods, with a male co-offender, and with a young victim that was well known to the offender. Aggravating factors related to the vulnerability of the victim, abuse of power, and lack of insight. Mitigating factors related to accepting responsibility and a desire for self-change. Offenders were generally sentenced for two to five years, with ancillary orders intended to track and restrict further offending, rather than foster rehabilitation. Discussion: Gaining a better understanding of Canadian FSO population is the first step toward improving rehabilitation and prevention.

MANDATORY MINIMUMS: EQUAL BUT UNEQUAL

The war on drugs promulgated drastic sentencing reform in the 1980s that has proven to be disastrous to the American criminal justice system. Decades-worth of mandatory minimum sentencing reveals the deleterious effects these provisions inflict upon the American population. Mandatory minimum sentencing undermines the criminal justice system by eroding fundamental fairness, tying judges’ hands, and discriminating against defendants’ distinctive cases. These laws arbitrarily and disproportionately impact minorities, overcrowd prisons, and incur unconscionable expenses. This article argues for the abolition of mandatory minimum sentencing for drug offenses and the restoration of judicial discretion. This article proposes that Congress take legislative action to resolve the multitude of issues associated with mandatory minimum sentencing. Abolishing mandatory minimum sentencing and restoring judicial discretion is paramount to rectifying the deleterious effect of the war on drugs and rehabilitating the criminal justice system. Taking action in this way has the capability to deter excessive plea deals, decrease the number of low-level offenders in prison, curb racial disparity, reduce recidivism, lessen mass incarceration, and save taxpayers thousands of dollars annually. Part I of this article highlights an array of problems associated with mandatory minimum sentencing. Part II argues for the legislature to abolish mandatory minimums to resolve the shortcomings addressed in Part I. Part III explains how abolishing mandatory minimums will positively affect the criminal justice system and expounds upon the issues and the resolution proposed in Part I and II, respectively.

PENYALAHGUNAAN WEWENANG JABATAN OLEH PEJABAT NEGARA/PEMERINTAH : PERSPEKTIF HUKUM ADMINISTRASI NEGARA DAN HUKUM PIDANA

On November, 17, 2019, it was reported that the President Director of PT Garuda Indonesia Tbk. I Gusti Ngurah Askhara (Ari Askhara) got involved in the illegal Harley Davidson motorcycle parts and Brompton bikes found in the Garuda Indonesia aircraft. He was fired from the position. The case of the illegal spare parts by the Customs and Excise officers on the Airbus A330-900 Neo aircraft with the flight number GA 9721 on Sunday November, 17, 2019 is one more abuse of power among so many similar cases done by state officers. The case proves that an official power is vulnerable to corrupt. Abuse of power is as old as the age of human civilization. Abuse of power is an unlawful act done by a person or people in an official capacity. Abuse of power breaks the article 3 of the Indonesian Law No. 31 Year 1999 jo the Indonesian Law No. 20 Year 2001, that is “Anybody who with the intention to earn profit for himself or another person or a corporation, abuses the authority, opportunity or facilities given to him on account of his post or position which may cause loss to the state finance or state economy, shall be sentenced to life imprisonment or a minimum sentence of 1 (one) year and a maximum of 20 (twenty years) or a minimum fine of ..." It is a qualitative research methodology with observation and literary review to collect data. The research concludes that state administration officials should have professionally technical skills and morality to do their duties. If they do not have them, they might be fired in the perspective of administrative law and be sentenced to life imprisonment in the perspective of criminal law.

The crisis of criminal justice in South Africa

This article builds on two lectures (delivered in 2017 and 2019 at the University of the Western Cape and the University of Cape Town respectively) that addressed a a controversial and often overlooked crisis in the criminal justice system – the minimum sentencing regime. The paper argues that minimum sentences are no response at all to curbing crime in South Africa and to making our people safe. The minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. It has been an extravagant mistake of science, understanding, and policy and social response. The article summarises some of the arguments and considers why we are still stuck with minimum sentences when they are demonstrably useless and counterproductive. The author argues that the reasons lie in our broken history, in incoherent decision-making in our present political leadership, institutional incompetence, and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions.
 

The crisis of criminal justice in South Africa

This article builds on two lectures (delivered in 2017 and 2019 at the University of the Western Cape and the University of Cape Town respectively) that addressed a a controversial and often overlooked crisis in the criminal justice system – the minimum sentencing regime. The paper argues that minimum sentences are no response at all to curbing crime in South Africa and to making our people safe. The minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. It has been an extravagant mistake of science, understanding, and policy and social response. The article summarises some of the arguments and considers why we are still stuck with minimum sentences when they are demonstrably useless and counterproductive. The author argues that the reasons lie in our broken history, in incoherent decision-making in our present political leadership, institutional incompetence, and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions.
 

Decision diagram-based integer programming for the paired job scheduling problem

The paired job scheduling problem seeks to schedule n jobs on a single machine, each job consisting of two tasks for which there is a mandatory minimum waiting time between the completion of the first task and the start of the second task. We provide complexity results for problems defined by three commonly used objective functions. We propose an integer programming formulation based on a decision diagram decomposition that models the objective function and some of the challenging constraints in the space of the flow variables stemming from the diagrams while enforcing the simpler constraints in the space of the original scheduling variables. We then show how to simplify our reformulation by projecting out a subset of the flow variables, resulting in a lifted reformulation for the problem that can be obtained without building the decision diagrams. Computational results show that our proposed model performs considerably better than a standard time-indexed formulation over a set of randomly generated instances.

Malawi's Missing Court Files and the Kafantayeni Resentencing Project

AbstractMissing court files pose a serious issue regarding access to justice for illiterate and indigent prisoners, especially if the files go missing after the prisoner has been convicted and sentenced. Malawi's High Court recently grappled with the issue of missing court files post-conviction in the course of a large resentencing process, known to the legal community as the Kafantayeni Project. The Kafantayeni Project resentenced over 150 prisoners whose mandatory death sentences for murder were deemed unconstitutional, despite the majority of them missing court files. This article outlines the state of judicial record keeping in sub-Saharan Africa, the origins of the Kafantayeni Project, the extent of the record keeping problem it uncovered, how the judiciary resolved those issues while adding to the jurisprudence on missing court files, and the future implications for Malawi and elsewhere.

The Complexities of Criminal Responsibility and Persons With Intellectual and Developmental Disabilities: How Can Therapeutic Jurisprudence Help?

This article examines issues regarding legal capacity and criminal responsibility relating to persons with intellectual and developmental disabilities (IDD). We examined the case of a 28-year-old male identified as having the mental age of an 8-year-old, accused of four counts of possessing child pornography in Ontario, Canada. If convicted, the offenses carried a minimum mandatory sentence of 1-year imprisonment. The defense attorney argued that since persons are not criminally responsible when they are chronologically less than 12 years old, the same ought to be extended to those with a mental age of less than 12. The Crown prosecutor asserted that the defense’s connection of disability to a lack of capacity reverts our conceptualization of persons with IDD back to a time when they were infantilized. Using therapeutic jurisprudence as a framework, we examined whether problem-solving courts (e.g., mental health court) could be used to address the needs of a person with IDD and offer a different understanding and potential solution to nonjudicial decision makers that satisfies the principles of both criminal responsibility and public safety.

The Model of a System for Criteria-Based Assessing of Students' Functional Literacy and its Developmental Impact

Objective: The purpose of this article is to compile a model of a system for assessing students' functional literacy based on a criteria-based approach. Background: Everyone use a traditional five-point grading system to assess students' activities, but using it, it's not always possible to objectively evaluate student work. Therefore, the authors use the criteria-based student assessment system in our lessons. Method: Criteria based assessment involves a mechanism that allows evaluating students more objectively. Assessing the activities of students in the lesson becomes democratic, since a student is the subject of his training, and a teacher does not play the role of a “judge” in grading. Results: As a result of the study, it was revealed that the assessment system makes it possible to determine how successfully one or another educational material is mastered, or a certain practical skill is formed. At the same time, it is advisable to take a mandatory minimum as a reference point. Conclusion: The criteria-based assessment system is completely transparent in the sense of how to give formative and summative grades, as well as the goals for which these grades are put. It is also a means of diagnosing learning problems, providing and ensuring constant contact between a teacher, student, and parents. Based on the conducted practical experiment, the effectiveness of the model of the system for assessing the functional literacy of students based on the criteria-based approach in computer science has been proved.

Legal Certainty in Judge's Decision Against Perpetubuhananak Criminal Actors Sentenced to Prison Under Special Minimum Limits (Case Study Number 38 / Pid.Sus / 2019 / Pn Pdg)

The Judge's decision is closely related to how the Judge expresses his opinion or consideration based on the facts and evidence in the trial and the Judge's confidence in a case he is trying. Even though the Judge has free or independent power to impose his decision, the prison sentence is still below the specific minimum limit, causing controversy or debate, especially regarding what legal norms are used by the Judge in deciding the case, so that the Judge leaves aside the special minimum threat which is expressly regulated in the Child Protection Act. The verdict in the form of imprisonment imposed under this special minimum threshold can be considered too light and it is feared that it will not cause a deterrent effect for the perpetrators in the future and may damage the legal certainty as mandated in the Child Protection Act. This can be seen in the Padang district court's decision Case number 38 / Pid.Sus / 2019 / PN Pdg, the judge handed down a prison sentence below the specific minimum against the Defendant. The method used in this research is normative juridical method. This type of research is descriptive using secondary data. The results of the study show that 1) Judge's considerations in imposing a criminal sentence under the threat of a specific minimum prison sentence against the Defendant are based more on non-juridical considerations which are then used as judicial considerations of the Judge by observing the reconstruction of legal facts revealed at the trial and guided by Circular Supreme Court Number 1 Year 2017; 2) Judge's consideration of the conviction under a special minimum threat as the case above raises legal uncertainty both at the normative level and at the practical level.