Penal Punishment Research Articles

Pertimbangan Hakim Dalam Menjatuhkan Vonis Terhadap Lansia Demensia Yang Melakukan Perbuatan Tindak Pidana

Child molestation is a despicable act that is not only committed by any adults, but also elderly people who may suffer from dementia that may be at cronic stage. Criminal liability for elderly people with dementia has to be medically observed or medical forensic observation by certified mental health doctors. If a psychiatric expert states that the defendant suffer from a severe mental health that may be exampted by the law, then the defendant has the potential to be waved from penal punishment. The aim of this research is to determine the judge's considerations in giving sentences to defendants who is an elderly with cronic dementia. This research uses a normative juridical research method. The results of his research showed that elderly people with dementia were still found guilty because they were proven to have committed a criminal act, in their consideration the judge took into account aggravating and mitigating factors so that in their decision the judge sentenced the defendant to serve his sentence not in prison but sent him to a mental hospital. to be treated. In conclusion, the judge still sentenced the defendant because the judge believed that the defendant committed his actions before experiencing dementia, so the Panel of Judges at the South Jakarta District Court sentenced the defendant to 6 (six) months in prison and a fine of Rp. 20,000,000.00 (twenty million rupiah), and pay restitution in the amount of Rp. 38,736,550 (thirty-eight million seven hundred thirty-six thousand five hundred and fifty rupiah).

Alcohol drinking under emergency causes criminalization, from the perspective of the Sects jurisprudence the Islamic Penal Code

Emergence is, inter alia, a secondary title and a reputable jurisprudential norm used in different areas of jurisprudence and laws. A case considered as an implication emergence is alcohol drinking to eliminate thirst and to treat. There are differences among Imamieh and Sunni jurists on permission or lack of permission for emergence alcohol drinking. Among criminal laws, only article 152 of Islamic law has addressed such emergence. Which jurisprudential attitude toward permission or lack of permission on emergence alcohol drinking enjoy needed strength and can emergence alcohol drinking being criminalized? In present study, by using descriptive – analytical method and a comparative approach, it is initially attempted to reread and analyze Imamieh and Sunni jurists’ views on emergence alcohol drinking and then to compare them with Islamic Punishment Code. Ultimately, based on Holy Quran and Narratives’ general arguments and considering the fact that emergence is a secondary title, it is concluded that if someone drinks alcohol in emergency, one cannot legally consider any penal punishment for him/her. The indication of this statement, is article 152 of Islamic Punishment Code

Profile of detention institutions for the implementation of measures and custodial sentences

Given that penal punishment is applied for the purpose of restoring social equity, correction and resocialization of the convict, as well as deterrence of further crime, it becomes imperative that penal enforcement measures are tailored according to both the specific features of the punishment and the individual characteristics of the convict. Therefore, the system of prison sentence enforcement faces a complex task because deprivation of liberty, by its nature, imposes a range of restrictions and limitations. In the process of enforcing prison punishments, there is a risk that punishment measures might cause physical damage and even downgrade the dignity of the convicted person. This article aims to analyse the current situation in the prison administration system in areas that regard the implementation of the legal provisions on prisoners’ placement according to types of prisons and regimes. Moreover, the paper identifies gaps in the legal frameworks and formulates proposals for addressing the pinpointed issues. The relevance of this topic lies in the fact that the purpose of punishment can be fulfilled only when the system of prison regimes is applied by taking into consideration the individual psychological and social needs of the persons deprived of liberty.

Reviewing Information and Electronic Transaction Act from a Convention on Cybercrime of 2001

Introduction to the Problem: This research analyses the norms of substantive criminal Law regarding Information and Electronic Transaction Act Number No. 11 of 2008 in conjunction with Bill Number 19 of 2016 on Amendments to Information and Electronic Transactions Act No. 11 of 2008 and its compliance with the Convention on Cybercrime, 2001. Purpose/Objective Study: This research aims to analyze the conformity of offenses, criminal liability, and criminal sanction in the Information and Electronic Transaction Act (IETA) to the principles promulgated in the Convention on Cybercrime, 2001. Design/Methodology/Approach: This research is a normative legal study using statute and conceptual approaches. Findings: This study concluded that, in general, offenses regulated in IETA had confirmed the Convention. Nevertheless, the provision of computer-related fraud in IETA has a broader range than that of the Convention. IETA also lacks formulation concerning when and who bears criminal liability for corporate crime as suggested in the Convention. The research also finds that IETA did not adopt the principle of effectiveness and proportionality in promulgating both punishment and treatment. This study suggests that IETA should adopt criminal liability for a corporation, set the penal punishment proportionate to the seriousness of conduct and culpability of the actor, and regulate treatment. Paper Type: Research Article

The Institutional Hearing Program: A Study of Prison-Based Immigration Courts in the United States

This article presents the findings of the first research study of the Institutional Hearing Program (IHP), a prison-based immigration court system run by the U.S. Department of Justice. Although the IHP has existed for four decades, little is publicly known about the program's origin, development, or significance. Based on original analysis of archival records, this study makes three central contributions. First, it traces the origin and growth of the IHP within federal, state, and municipal correctional facilities. Notably, although the IHP began in 1980 as a program to deport Cuban asylum seekers held in civil detention in an Atlanta prison, it now operates to deport noncitizens serving prison sentences in twenty-three federal prisons, nineteen state prison systems, and a few municipal jails. Second, this article uncovers the crucial role that prison-based immigration courts have played in shaping the design of carceral institutions around the priorities of an immigration system that primarily targets Latinos for deportation. Third, this article shows how immigration courts embedded in carceral spaces have served as influential, yet overlooked, incubators of changes to immigration law and practice that today apply to all immigration courts, not just the IHP. These findings have important implications for contemporary understandings of the relationship between immigration detention, racialized control of migration, and penal punishment.

Revocation Of Re-Elected Rights For Corruptor In Public Offices Without Time Limitation The Progressive Law Perspective

The problem of corruption has always been a public discussion, not only because of its consequences. But also because the perpetrators of corruption that they caught were from political parties. And it tends to be after they go through the criminal period, re-enter the area of policy holders or authority through political channels again. Additional criminal imposition of revocation of political rights for the corutor is stated in the Decision of the Supreme Court Number: 537k / Pid.Sus / 2014, and Number 1195K / Pid.Sus / 2014. The application is not limited to the period as stipulated in article 38 of the Criminal Code. Revocation of political rights on the one hand is considered contrary to human rights, but revocation of political rights becomes an important punishment imposed, considering that the perpetrators of corruption do not come from political parties. The application of criminal acts is a means of reason to prevent criminal acts. Revocation of political rights which is still debated can have an impact on its implementation. Therefore, in its implementation, of course requires a Law Enforcement Officer who has a step of thinking and progressive steps. Penal punishment is the authority of the Judge. Judges in imposing crimes should rely on the principle of substantive justice and are intended to provide protection to society (social deffence)

ОЧИМА ЄВРОПЕЙЦЯ: ВІЗІЯ СХОДУ В ПРАЦІ АВРААМА АНКЕТІЛЬ-ДЮПЕРОНА «СХІДНЕ ЗАКОНОДАВСТВО»

XVII-XVIII centuries determined by further European inclination into the Eastern countries affair`s. Due to old custom and to enlarge European understanding of the East, a lot of travelers made their own accounts about nearly everything the saw. But usually they didn`t understand the language, didn’t realize peculiarities of social order and receive information from only one source and moreover analyzed issues they had through the prism of European-based consciousness, that had created specific and inaccurate image of the East. During the Enlightenment such descriptions were used to create a civilization theory which stated about principal distinction between East and West. In popular form this theory is known as «oriental despotism», and had been postulated by one of the most popular French philosopher – Charles Louis de Montesquieu in his works «The Spirit of Laws» and «Persian letters». This concept consists of three elements: absolute monarchy, which is not restrained by any means, law or society, ability of state to confiscate property of its own citizen and therefore absence of private property at all, and absence of codified law. In not so distant future such an ideas were implicitly rooted in the theoretical background of full-scale political and military expansion of European countries, that ruined Asian states or limited their sovereignty made them almost a colonies. Nevertheless there was one man who stood against such theories – Abraham Anquetile-Duperron (1734-1805), profound French scholar, linguist, adventurer and due to his time – participant of French-Britain rivalry in India, who is now remarkably known for efforts to translate and edit Avesta, and thereafter being totally obstructed by his fellow-scholars, and now widely recognized as one of the finding father of French oriental studies and oriental studies generally. In his not so acclaimed work «Eastern legislation» (1778) he argued that so called «oriental despotism» has never existed, its element were based on false, incomplete assumptions, mechanistic extrapolation of European realities on the improper civil situation, banal exaggerations which had been made by previous travelers. Taking Ottoman empire, Persia and India (Moghul Empire) Duperron offer his own interpretation of the same facts, which were described by others. He stated, that in each of this countries have codified laws, which regulate all kinds of social activities, there is private property, that could be bought and sold and inherited by both male and female, and could be confiscated only as a penal punishment. All economical interactions are based on written agreements and religion is not as sufficient as his predecessors described. Monarch and other officials are being restrained by the system of rules which control each their step or decision, moreover their power depends on public recognition and charisma, which means in case they lose it, they lose their position as well and society have divine right to overthrow such leaders as infidels or tyrants. In spite of this Duperron makes his conclusion of invalidity of «oriental despotism» as an immanent and established type of ruling in the East. He emphasized that so called «oriental despotism» occurs only in time of collapsing of normal social life which were described. So force Duperron insists on principal equivalency of the Eastern and Western civilization types, which have the same core elements but differs only in its realization, determinate by geography, history and society.

Psychological Approach of the Minors' Legal Status During Their Incarceration in the Romanian Detention Centers

The issue of the convicted minors' legal status viewed from a psychological perspective is one of topical interest in the penitentiaries for minors in Romania. Minority is thus considered not just from a legal point of view, but also from a psychological one because a crisis over this topic is currently passed in Romania. The de facto situation is emphasized in all the specific institutions which have as an objective the re-education of convicted minors. The current paper highlights certain arguments in order to expand the informational spectrum of the state institutions who serve the purpose of promoting and developing special programs for minors' social reintegration during their period of incarceration. From this point of view, the paper focuses on the implementation of these standardized programs, but also evaluates equally the potentiality law enforcement offers in supporting those who execute a deprivation of liberty penal punishment. Are the Romanian authorities able to manage this situation? Are there enough instruments implemented to support the incarcerated minors? These are questions which deserve adequate answers.

La deconstrucción de la subjetividad desde el estado: una mirada a los derechos en el sistema carcelario colombiano

A partir de ciertos elementos, la Filosofía y el Derecho definen las características esenciales de la subjetividad; aquella a partir de sus diversas construcciones, y la disciplina jurídica a través de la Constitución y los derechos allí reconocidos, proponen un modelo esencial de sujeto que aspiran construir. De otro lado, el castigo penal ha pasado de la afectación desmedida del cuerpo del condenado, a un modelo que recae tanto en su humanidad como en su espíritu, en función de la economía de la sanción. Aún cuando se acude al Derecho Penal, la subjetividad debe ser plenamente respetada por el Estado, teniendo en cuenta que la función de la pena es principalmente lograr la reinserción del sujeto al pacto social y su consecuencial readaptación a las estructuras económicas. Empero, el mismo Estado resulta ser el agente de la deconstrucción de la subjetividad que se propone realizar, cuando desconoce ciertas garantías esenciales de los reclusos, situación que se puede apreciar al estudiar el estado de cosas inconstitucional de las cárceles colombianas.

불고지죄와 증언 : 동백림 사건을 통해 본 권력의 히스테리와 문학

This article examines the phenomena of anti-communism in Korean history by analyzing the East Berlin Spy Ring Incident of 1967. e starting point of this study is Cheon Sang-byeong(1930~1993), a poet who was known to have been involved in the incident and was falsely charged. Cheon’s case is significant because it reveals not only the structure of power but also the legal legitimacy of false charges in Korea at that time.BR The following issues are discussed. First, the East Berlin Spy Ring Incident enabled anti-communism to become a fundamental ideology with which to suppress other values in the 1960s. Anti-communism was not merely a political ideology but a life discipline infiltrated into all the aspects of Koreans’ everyday life. Second, the penal punishment given to Cheon Sang-byeong should be considered in terms of the East Berlin Spy Ring Incident. In its broad context, Cheon’s conviction was obtained by a false charge and enforcement of ‘Korean national emotion’ and ‘anti-communism.’ In the same context, Park Soon-nyo’s novel fictionalizing the spy incident proves that an ‘act of testimony’ can elucidate the structure of power which works through a false charge and that it is also the response of power.BR In short, the East Berlin Spy Ring Incident needs to be re-evaluated in terms of the meaning of ‘anti-communism’ in the 1960s, and the significance of the false charge and act of testimony. is incident confronts us with the hysteria of power that caused chronic anxiety which produced obsessive suspicion of all people and relationships through the logic of anti-communism.

O Caráter Simbólico do Crime de Sonegação de Contribuição Previdenciária

A Previdência Social possui “regime geral, de caráter contributivo e de filiação obrigatória, observados critérios que preservem o equilíbrio financeiro e atuarial”, com custeio, mormente, por contribuições sociais, que não repassadas configuram os crimes tipificados no art. 168-A (apropriação indébita previdenciária) e 337-A (sonegação de contribuição previdenciária) do Código Penal. A necessidade da tutela penal no crime de sonegação de contribuição previdenciária diante da extinção de punibilidade pelo pagamento do débito levanta a hipótese de legitimidade (ou não) da criminalização da conduta pelo caráter meramente simbólico da pena, e seu cunho arrecadatório, violando a noção de direito penal mínimo.

A Review on the Operation of Penal System and the Phenomenon of the Strengthening of Penal Punishment

A Review on the Operation of Penal System and the Phenomenon of the Strengthening of Penal Punishment

Two years between life and death: A critical analysis of the suspended death penalty in China

The suspended death sentence is a unique form of penal punishment in the Chinese criminal regime. In the context of the recent death penalty reform, an increasing resort to the suspended death penalty has been acclaimed to facilitate a substantial reduction in the use of the death sentences and executions. While most academic attention has been paid to its utility as an alternative to the death penalty, little is devoted to examining its penological grounds and practical use. This article seeks to fill this gap by describing the unduly complicated penal landscapes and discussing problematic consequences concerning the use of the suspended death penalty in contemporary China. It investigates its ambiguous nature, fuzzy boundaries and problematic implementation processes. It is the hope that the article will inspire further empirical exploration on this topic of great theoretical and policy import.

Experience with mediation in domestic violence cases in Spain: legal regulation and opinions from judicial practice and criminal law scholars

The incidence rate of domestic violence cases in Europe has not really significantly decreased in the last ten years, and Spain is not an exception on this. Despite legislative changes and improvements that have taken place in many of our countries regarding penal punishment of those behaviors, it seems to be not enough or perhaps not suitable for all possible cases in this field. For this reason, for some time it is being discussed and, in any cases, trying out with the option to apply other techniques of conflict resolution based on restorative justice (and specifically the process of mediation between victim and offender). The purpose of this brief paper is then to examine the current legal situation in Spain about mediation in cases of domestic violence, and the opinions that have been expressed on this from the criminal doctrine.

REGULASI WAKAF DI INDONESIA PASCA KEMERDEKAAN DITINJAU DARI STATUTE APPROACH

This Article focusing on wakaf regulation in Indonesia after its independence day. The research used statute approach, it also used regulation No. 5 Year 1960 and regulation No. 41 Year 2004 as its primary legal source. In analyzing data it used three legal basis; Lex Superior Derogat Legi Inferiori, Lex Specialis Derogat Legi Generali, and Lex Posterior Derogat Legi Priori. Firstly, it concludes that the background of regulating the wakaf regulation in Indonesia was conducted because of public needs to a special regulation which can rules wakaf and its legal contemporary development. Secondly, the comparison of wakaf regulations regulated from post-independence until reformation era explained that in the first concept of wakaf and its implementation opportunity was realized in The Reg. 5/1960. But the concept of Nâdzir firstly introduced in Gov. Regulation No. 28/1977 and established by the Indonesian compilation of Islamic Law. Thirdly, penal punishment changes, and according to statute approach analysis using those three legal basis, the Reg. 41/2004 is the most updated wakaf regulation in Indonesia.

Justifying Justice: Ricoeur’s Words of Wisdom

Justifying Justice: Ricoeur’s Words of Wisdom1 Dinda L. Gorlée (bio) Remembering the French philosopher Paul Ricoeur (1913–2005) and the hermeneutic thoughts that won him worldwide fame, we widely acclaim his love of justice and human vulnerability that made him lash out against injustice. His protest against the conflict of good and evil in contemporary society was interpreted by him in law, medicine, theology, and politics. Ricoeur’s pluralistic, adversarial, and disputatious struggle in those realms was a future-oriented philosophical approach against ignorance, victimization, xenophobia, illness, and other ethical, political, or religious human fears. At the same time, Ricoeur’s precise thinking belonged to the old-style philosophy, in the history-linked sense that he used classical authors as his main sources. Ricoeur’s argumentation is built on Plato, Aristotle, John Locke, Baruch Spinoza, Immanuel Kant, and George W. F. Hegel and on scientific and intellectual movements as the Enlightenment and Romanticism until present-day philosophy (Hannah Arendt, Karl-Otto Apel, Jürgen Habermas). In his Nicomachean Ethics (ca. 350 BC), Aristotle discussed the moral virtue of sophia as theoretical wisdom and phronesis as practical wisdom and Kant’s Groundwork of the Metaphysics of Morals (1785) facing as it stands for Ricoeur “a dissatisfaction with life over against the prohibition of suicide, personal distress over against the prohibition of false promises, another’s distress against the command to cultivate one’s talents” (128). Aristotle and Kant seem in this book to become Ricoeur’s favorite starting-points in his search for a contemporary ethics and a new capacity to act. Goodness is a duty to speak and to act. [End Page 293] The final collection of lectures and essays, Reflections on The Just is a continuation of The Just (2000). Both volumes hold the same cover image, a shadowy pair of scales figuring a male nude on top of one scale, symbolizing not so much external justice or social legality as inner judgment setting in motion the psychic (and psychosomatic) weighing of good and evil, right and wrong. Ricoeur made the false “shadows” of the image visible, including the “‘secret’ or ‘silence’ regarding the overall sense of his enterprise” (154). The Just, the previous book, totals 161 pages, whereas the Reflections on The Just counts 265 pages. The extensive appendix to the second book should add new material to the first, but the 265 pages are a surplus for an “expansion” or further unfolding. The fifteen essays are preceded by a lengthy introduction (1–41), which in itself is a review of (part of) the essays. Reflections on The Just poses an embarrassing and paralyzing question to this reviewer. Now only is the book a review (re-thinking) of the previous book, but the review of the volume has been turned into a review of a review. Such a reviewed review turns out to be a dissecting strategy, leaving the critical maneuver smashed and stripped of its vital contours. In short, a review must be the personal evidence of a “witness,” but the written attestation should prove valuable as a medium of some “proof.” Writing this review of Reflections on The Just could become a self-reflexive infraction and could degenerate into a penal punishment. Reflections on The Just has a speculative title—the French original was Le Juste 2 (2001) and the Reflections is supposed to be a secondary addition to the previous The Just. As reported in the OED, a “reflection” notes a critical angle of the “action of bending, turning, or folding back” taken in figurative sense as an “action of turning (back) or fixing of thoughts on some subject; meditation, deep or serious consideration.” Reflections suggests Ricoeur’s self-reflexions in his professorial spirit of self-education passed on to the readers or students, probably legal laymen. The Just is derived from Plato’s Dialogues: the verb “to dikaion (which will also be that of the Latin and German neuter), brought to the level of a substantialized adjective . . . . This return to the properly neutral use of the neuter adjective, turned into a substantive term, authorizes a broad opening to the conceptual field” (1). Ricoeur’s pirouette is an ungrammatical turn, evidenced by...

The Criminalization of Aliens: Regulating Foreigners

Intergroup contact and conflict is inevitable in the context of global economic competition and geopolitical interests. Immigrant and migratory groups have particularly been subjected to unequal treatment by members of dominant host groups, generally as a means of promoting and protecting their own economic and political interests. Immigrants often serve as a dependent and secondary labor force, useful within fluctuating cycles of labor shortage, economic crises, and economic prosperity. Likewise, criminalization is one tool that perpetuates notions of “otherness,” which in turn maintains immigrant minorities as a secondary labor force; and justifies penal punishment of them. For instance, in the United States, Chicanos and Mexican immigrants have been exploited as secondary labor, and have also been more likely than many other groups to be swept up in the Criminal Justice System. Drawing on neo-Marxist perspectives and postcolonial notions of “otherness”, this paper examines the relationship between incarceration of foreigners and economic conditions, economic threat, population change, and otherness. As hypothesized, country level data suggests that factors such as a free market economy, population change, economic competition, and a concentration of immigrants in the population are related to the level of imprisonment of foreigners. Implications for further research are also discussed.

Current Issures on Penal Punishment and Correction

Current Issures on Penal Punishment and Correction