2021-08-16

Sentencing Standards: Judicial Yuan Prepares for the “Sentencing Commission”

In order to enhance appropriateness, transparency, fairness, and predictability in sentencing, Taiwan’s Judicial Yuan formed a Steering committee two years ago.  After 19 meetings, the committee has proposed a “Draft Act for Sentencing Guidelines for Criminal Cases” to establish a “Sentencing Commission” to increase the objectivity and appropriateness of sentencing standards.
 
Resulting from a controversial case of a sexual assault against a child in 2010, social welfare groups heavily criticized the judges for the mild sentencing they imposed on the offender and called for sentencing standards to ensure transparency of judicial information and to reduce the discrepancies in sentencing imposed by different judges.  In response, the Judicial Yuan formed an ”Analysis Group for the Sentencing of Sexual Offenders” to establish a sentencing system modeled somewhat on those in the UK and the US.
 
The Judicial Yuan further invited representatives of the judges and prosecutors, scholars, and other interested parties to extend the scope of the sentencing analysis to other types of criminal offences.  The goal was for Judges to have sentencing reference by inputting relevant sentencing factors.  For instance, the judges would have a similar sentencing range for sexual offenders who are famous film directors or entertainers, so long as the facts and circumstances of the crimes were highly similar.
 
On 5 December 2019, the Judicial Yuan invited experts, such as judges, prosecutors, attorneys, and scholars to form the “Steering Committee for the Commission on Criminal Sentencing” chaired by its Secretary-General to serve as the chairperson.  The Committee held a total of 19 meetings the next year and proposed a “Draft Sentencing Guidelines for Criminal Cases” on 28 July this year.  The Committee will proceed to contribute to the relevant legislation and prepare for the establishment of the “Commission for Sentencing Guidelines for Criminal Cases”, or the “Sentencing Commission”.
 
In the draft, the Sentencing Commission will be required to carefully consider the professional backgrounds of each prospective member of the Commission.  To ensure broad participation of experts from different fields with diverse professional opinions, the Draft explicitly specifies the composition, terms, qualifications, appointments, and nomination procedures.  Also, to administer the aforesaid sentencing matters, the Draft establishes various departments of the Sentencing Commission.
 
To effectively enhance the predictability and appropriateness of sentencing through the Sentencing Guidelines as established by the Sentencing Commission and to avoid unreasonable differences, the Draft specifically prescribes the binding force of the Sentencing Guidelines.  To complete the sentencing standards, the Draft also includes basic principles of and due factors for sentencing, such as retributive justice, proportionality, equality, equal attention to circumstances both favorable and unfavorable, the prohibition against double jeopardy, evaluation of multiple crimes as a whole, and rehabilitation possibility.
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