In response to the resurgence of the “White Rose” movement, initiated after several child molestation cases resulted in minor verdicts last year, the Judicial Yuan has proposed the creation of two mechanisms — a public observer jury system and a system for determining the length of sentences for offenses against sexual autonomy — in the hope that these can prevent the creation of “dinosaur judges” and “dinosaur decisions.” Can such mechanisms really stop arbitrary decisionmaking by judges?
According to the Judicial Yuan’s current plans, legislation will be completed and a public observer jury system dealing with felonies implemented next year. This judicial tribunal would consist of three judges and a public observer jury made up of five civilians. These civilian members would have to attend the entire case proceedings and be able to express their opinions. If judges do not agree with these opinions, they would have to list the reasons for not adopting them in their verdicts.
According to the Judicial Yuan, in this system it would not only be the duty of members of the public to take part in the entire process, they could also discuss the details of the case with judges and express their opinions, while judges would have a duty to respond to the public’s doubts.
This is of course different to passively observing the proceedings from the sidelines and the compulsory civilian participation would prompt judges to be more cautious and less likely to make arbitrary decisions, thus making the trial process fairer and more objective.
This system states that whenever judges disagree with the opinions of the public observer jury, they have to provide an explanation in the verdict. While this may seem to be a form of monitoring, this is not necessarily the case, because the opinions of the jury are merely for reference and would have no binding force on judges. Also, given a judge’s expertise, it would not be very hard to rebut the opinions of the jury. Also, when the jury and judge have different opinions, these differences will most likely become the major point in an appeal by the accused, which will only further complicate the proceedings.
Thus, if judges do not change their arbitrary attitudes, the duty to explain themselves might only serve to further highlight their arbitrary practices and make verdicts even less convincing to the public. In addition, to meet the requirements of the jury system, courts would surely have to be redesigned and a fee may have to be paid to members of the jury. After going to all this trouble, the jury would only play a consultative role that probably would have a very limited effect on stopping judges from making arbitrary decisions.
The system for determining the length of sentences for offenses against sexual autonomy set up by the Judicial Yuan has involved gathering information on more than 5,000 verdicts on sexual assault cases from the past four years. This system would allow judges when processing cases to click on options in the system such as age, the specific nature of crimes such as whether a weapon was used or whether oral sex was involved, so they can ascertain the average length of sentences given out in the past, how heavily or lightly a criminal was convicted and how these past decisions relate to their current cases.
Establishing such a system could indeed provide judges with a more objective basis for determining the length of a sentence, as different judges often give out very different sentences on similar cases. However, for this sentencing guide to be a useful reference, after first analyzing all past cases, the factors that influenced the length of the sentences must be analyzed as well as choosing which verdicts can be used as standards and which ones excluded from forming a set of standards because they were based on arbitrary decisions by a judge.
This is the only way to come up with a set of objective standards and maybe even a sentencing formula. If all it does is lump past cases together, it would clearly have very limited value as a reference.
Also, such a sentencing system is only capable of providing standards for the severity of the means used in a crime and its outcome. However, the factors that need to be taken into account when determining the length of a sentence do not only include punishment for an illegal activity, but also the conduct of the criminal, their intellect, motives and even their attitude after the crime. These factors cannot be categorized and it is therefore impossible to get answers on such things from a sentencing system.
Also, determining the length of a sentence is not just about meting out punishment, it should also aim to resocialize the criminal, which cannot be achieved merely by using a computer system. Overemphasizing the sentencing system could mean that judges would, because of its convenience, directly use the system as a standard and ignore the diversity that exists in each individual case. It could also cause judges to refer to it before a decision has been made on whether a person is guilty. This would not only violate the principle that a verdict on guilt and sentencing must be separated; it could also cause a premature verdict, which violates the principle of the presumption of innocence.
While we cannot say the Judicial Yuan’s two mechanisms for stopping judges from acting willfully were rushed through, we also cannot say they were the result of any deep thought. A thorough, in-depth review of the current system is missing, as is an open discussion and debate about the proposed new system. If the Judicial Yuan thinks that holding a few public symposiums means they have forged a public consensus and gained public support, they are merely highlighting the judiciary’s arbitrary decision-making process.
We will have to be wait and see whether such a system can produce any real benefits.
Wu Ching-chin is an assistant professor at Aletheia University’s department of financial and economic law.
Translated by Drew Cameron
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