Legislators have proposed a draft sentence commutation act (罪犯減刑條例) that, in contrast to the version enacted in 2007, seeks only to alleviate the excessive intake plaguing the nation’s prisons, without proposing a more comprehensive policy on crime. If adopted, the subsequent social costs of the draft act would be considerable.
After a criminal verdict is handed down, what is referred to as a res judicata comes into play: The matter has been judged and the verdict cannot be questioned or overturned by any means other than through a retrial or extraordinary appeal.
Article 40 of the Republic of China Constitution grants the president the power to remit sentences, and grant amnesties and pardons. The exercise of these powers would mean overturning a verdict and therefore would present a serious threat to the stability of the law. Such powers should not be exercised lightly.
If the proposed act is passed, it would be paramount to clearly identifying cases for which sentence remission might be a consideration and which would not, since reduced sentences cannot be applied across the board.
Serious crimes and crimes that have a high recidivism rate should not be eligible for sentence remission. However, it is not easy to ascertain what constitutes a serious crime, nor is it simple to set clear standards to determine recidivism rates.
In some cases, such as sex or drug offenses and organized crime, the decision could be more clear-cut. The complexity of this issue illustrates that it is one thing for legislators to decide on such matters and another to ensure that the decisions are fair.
If the proposed act is passed, it will mean that someone convicted of a crime that is considered appropriate for sentence commutation could have their sentence reduced irrespective of whether they have been fully rehabilitated.
This, coupled with the absence of a comprehensive process to determine a recidivism rate or suitability for sentence reduction, means the draft act focuses exclusively on ameliorating prison overcrowding. And a sudden increase in reduced sentences will only generate enormous pressure on the maintenance of public order.
When amendments were made to the Criminal Code in 2005, the judiciary implemented a two-tier system in which the perpetrators of serious crimes were given heavy sanctions, while those who committed less serious offenses were given non-custodial sentences.
As a result, to ameliorate the problem of prison overcrowding within the current criminal justice system, prosecutors have the option of negotiating a deferred prosecution agreement for less grievous crimes that would normally carry a custodial sentence of no more than three years, while judges can mete out suspended sentences or commute custodial sentences to a fine or community service.
These options are selected while considering a balance between recidivism and institutionalization. However, simply reducing or truncating sentences as a solution may well create more social problems.
Wu Ching-chin is an associate professor of law at Aletheia University.
Translated by Paul Cooper
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