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Date: November 22, 2024 Fri
Time: 11:57 am
Time: 11:57 am
Results for judicial decision making
2 results foundAuthor: Owens, Emily G. Title: Truthiness in Punishment: The Far Reach of Truth-in-Sentencing Laws in State Courts Summary: Truth-in-Sentencing laws require that violent felons serve large fractions of their sentences behind bars. While generally assumed to increase time behind bars, there is wide scope for TIS laws to be undone; prosecutors and defense attorneys may strategically manipulate charges to make defendants TIS ineligible, and judges may reduce sentences for individuals convicted of TIS eligible crimes. Using a large sample of defendants arrested for violent felonies and charged between 2000 and 2004, I find no evidence of charge or sentence manipulation associated with conviction for a TIS eligible offense. In contrast, I find that people who are arrested for TIS eligible crimes, but avoid the law by pleading guilty to TIS ineligible misdemeanors are dealt with more severely by the criminal justice system. This spillover effect of TIS laws into misdemeanor sanctions suggests that instead of undoing legislative intent, judges honor the spirit of TIS by increasing punishment for all violent offenders, not just those technically subject to the law. Details: Unpublished paper, 2011. 30p. Source: Internet Resource: Accessed March 1, 2013 at: http://www.socialsciences.cornell.edu/0912/Owens.pdf Year: 2011 Country: United States URL: http://www.socialsciences.cornell.edu/0912/Owens.pdf Shelf Number: 127745 Keywords: Judicial Decision MakingPunishmentSentencingTruth-In-Sentencing (U.S.) |
Author: Fazekas, Tamas Title: The Practice of Pre-Trial Detention: Monitoring Alternatives and Judicial decision-Making Summary: During the past few years, pre-trial detainees have made up almost one-third of the prison population in Hungary, contributing to the overcrowding of the penitentiary system, which, according to a 2015 judgment of the European Court of Human Rights (ECtHR), constitutes a structural problem in Hungary. For over half a decade until 2013, the number of pre-trial detainees in Hungary had increased constantly. However, since 2014, significant positive developments have been detected in the statistical data: there has been a reduction of around 20% in the number of cases in which pretrial detention is ordered, corresponding to a decrease in the number of prosecutorial motions aimed at ordering this coercive measure. This decrease in the use of pre-trial detention does not, however, guarantee that judicial decisions and indeed the decision-making process as a whole are consistently compliant with standards established by the higher Hungarian judicial forums, the ECtHR and relevant European Union (EU) legislation. The research project "The Practice of Pre-trial Detention: Monitoring Alternatives and Judicial Decision-making", funded by the EU, was conducted in 10 different EU Member States in 2014–2015, in Hungary by the Hungarian Helsinki Committee. The project’s research results presented below are based on (i) a desk-research, (ii) a survey conducted among 31 defence counsels, (iii) review of the case files of 116 defendants convicted primarily for robbery, (iv) interviews with five prosecutors, and (vi) written responses provided by 10 judges to a standard set of questions. An overview of the results of the research is as follows: 1. Decision-making procedure The presence of a defence lawyer is optional at judicial hearings on pre-trial detention and in fact ex officio appointed lawyers rarely appear at the hearing. Where they are present, their level of activity is often low. While the reasons for this were not identified through the research, such situations jeopardise the effectiveness of the suspect’s defence. 45% of lawyers surveyed explained that they have only 30 minutes or less with access to the case file in which to prepare for the hearing. While the amendments of the Hungarian Code of Criminal Procedure aimed at transposing Article 7 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (Right to Information Directive) have brought along substantial improvement in the defence’s access to evidence related to pre-trial detention, the practice of authorities can pose significant obstacles to the effective exercise of this right. 2. The substance of decisions Pre-trial detention was ordered in the vast majority of cases observed and reviewed. The most common reasons for ordering pre-trial detention were the risk of absconding, interfering with the course of justice and the risk of reoffending. The reasons given by judges for ordering pre-trial detention are often abstract and not specific to the case, repeating the prosecutorial motions requesting a pre-trial detention order. The analysis of the data supports a long-standing complaint of defence counsels, namely that courts seem to pay no or little attention to the arguments put forth by the defence: in the sample, judges referred to the evidence or arguments of the prosecution in 92.4% of the decisions, and only in 50% did they refer to the arguments of the defence. In violation of ECtHR-standards, the risk of absconding is often established solely or primarily on the basis of the gravity of the offence and the prospective punishment. The courts also tend to attribute great relevance to circumstances that, according to the jurisprudence of the ECtHR, may not serve as decisive factors. The Hungarian Helsinki Committee encountered a number of decisions in the case files that referred to the risk of interfering with the course of justice on the basis of very abstract arguments and often in phases of the procedure when such risks are minuscule or non-existent (after the closing of the investigation and, in one case, even after the delivery of the first instance judgment). With regard to the risk of reoffending, court decisions referring to convictions that took place long before the suspected perpetration of the offence serving as the basis of the actual proceeding, or convictions of completely different nature, as well as the substantiation of detention with nothing but the lack of regular income were encountered, in contradiction with ECtHR jurisprudence. 3. Use of alternatives to detention Statistical data show that existing alternatives to pre-trial detention (house arrest, etc.) are heavily underused. Interviews with judges and prosecutors seem to support defence counsels’ perception that there is little confidence in alternatives, and that this has not changed significantly with the introduction of electronic tagging in 2013. 4. Review of pre-trial detention The statistical analysis of further decisions on pre-trial detention (prolonging, upholding or reviewing pre-trial detention) provides evidence for the continuous lack of tailored reasoning for the ongoing deprivation of liberty. The concerns raised above in relation to the substance of initial pre-trial detention decisions also apply to these further decisions. In relation to appeals against pre-trial detention, second instance courts deciding on pre-trial detention never meet the defendant in person, which may be a violation of the ECtHR standards. In addition, it sometimes takes a very long time to deliver the second instance decisions, which is a violation of the obligation to proceed with adequate speed in cases where the defendant is deprived of his/her liberty. The research shows that investigating authorities often do not conduct more efficient investigations when cases involve a detainee. These instances result in a number of cases in which the length of detention violates the relevant provisions of the European Convention on Human Rights and Hungarian law. In addition, the elimination of the statutory upper limit of pre-trial detention in some cases gives the dangerous message that the legislator is willing to accept serious delays in procedures even when the defendants are deprived of their liberty. Recommendations The conclusions of the research indicate that the practice of pre-trial detention decision-making in Hungary falls short of the ECtHR standards in a number of areas. In light of these findings, the main recommendations are the following: The presence of defence counsel at hearings related to pre-trial detention should be made mandatory, and a deadline for notifying the defence counsel about the hearings related to pre-trial detention should be established, which ensures that defence counsel can participate in the hearing. The legal amendment that allows for unlimited periods for pre-trial detention in certain cases should be abolished and fair time limits imposed. Various legislative steps seem desirable with the purpose of guaranteeing the reasonable length of pre-trial detention. E.g. judges should be authorised to terminate pre-trial detention on the basis of the authorities’ failure to conduct the proceeding in a fast track manner if the suspect is detained. In order to ensure unrestricted access to the case files, the respective legal provisions should be further amended to ensure the effective implementation of the Right to Information Directive. Alternatives to pre-trial detention should be used more often. The underuse of these should be examined by one of the jurisprudence-analysis groups established by the president of the highest judicial forum. Reasoning of pre-trial detention orders at all levels could be improved by respective judicial and prosecutorial training, including information on the related ECtHR case-law to ensure ECtHR standards are applied when making decisions related to pre-trial detention. The law should be amended to ensure that appeal decisions in the pre-trial detention context can or in certain cases must only be taken after an oral hearing. Legislative reform should further impose deadlines to ensure that second instance decisions are delivered within an adequate time-frame. Details: Budapest: Hungarian Helsinki Committee, 2015. 67p. Source: Internet Resource: Accessed December 23, 2016 at: http://www.helsinki.hu/wp-content/uploads/PTD_country_report_Hungary_HHC_2015.pdf Year: 2015 Country: Hungary URL: http://www.helsinki.hu/wp-content/uploads/PTD_country_report_Hungary_HHC_2015.pdf Shelf Number: 147810 Keywords: Judicial Decision MakingPretrial DetentionProsecutors |