Part I : General Review on Sentencing Guideline System
Sentencing guideline means guidelines relating to the sentencing of offenders, to a particular category of offence or offender. As some countries, including US and England, Korea has developed its own sentencing guideline system, which aims to enhance consistency and fairness in criminal sentencing. There are significant issues regarding sentencing reform and sentencing guidelines, including the distribution of sentencing authority between the legislature, the judiciary and executive bodies, the scope and nature of sentencing discretion, and the constitutionality of guidelines.
This study aims to review the first set of sentencing guidelines in the year of 2009, set by the Sentencing Commission of Korea. Rather than describing how those sentencing guidelines are applied by sentencers in court, this research tries to analyse how those guidelines are evaluated by sentencing experts, and to study how the problems of sentencing disparity are dealt with, since the introduction of new sentencing guideline system.
1. Outlines of the evaluative research on sentencing guideline system
This research covers the background of introducing sentencing guideline system in Korea, and the history of developing sentencing guidelines. After that, it reviews the limits and problems of current sentencing guidelines, and the implementation of them. Another parts of the research is a comparative study of sentencing reforms in the US, UK, and European Union. This will explain the development of sentencing guidance and guideline in Europe, and especially in England. The lessons from the English sentencing reform and its guideline system will be instructive in reviewing the process of sentencing reform in Korea.
This study also conducts surveys on the experts' view on the development and implementation of sentencing guideline system. From the survey, it is expected that both sentencers and criminal lawyers can find ways to solve problems in current system and practice. Furthermore, it analyses sentencing practice on sex crimes, since the introduction of sentencing guideline on such types of crime, in 2009. This analysis focus on the changes in the degrees of sentencing on sex offences in divisional criminal courts, under the guidance of sentencing guidelines.
2. Background of the introduction of sentencing guidelines
In Korean criminal court system, once the accused is found guilty, the court imposes sentences, such as death penalty, imprisonment, deprivation of qualification, suspension of qualification, fine, penal detention and confiscation. Imprisonment can be either for life or for a specified tern. The specified term is from one month to 25 years, but it may be extended to 25 years in light of aggravating circumstances.
As for the aims and principles on sentencing, substantive laws has few relevant provisions. Article 51 of Korean Criminal Act does not provide any guidance for fairness in sentencing. In particular, discretionary mitigation under the Article 53 of the Act is criticised as a factor, which results injustice in sentencing. Sentencing practice in criminal courts also has been criticised for its unfairness and inconsistency, and people has not much confidence in criminal justice system. Unjust leniency in sentencing, especially for white crime is against common sense of justice.
As a part of criminal justice reform, the Judicial Reform Committee of 2004 recommended the introduction of sentencing guideline system. Revised Act on Court Organization of 2007 provides the legal basis for the Sentencing Commission of Korea.
3. General introduction of the Sentencing Commission and sentencing guidelines
Sentencing Commission of Korea was established at the Supreme Court in 2007 under the Act on Court Organization. It has 13 Commissioners, including a chairperson. The Commission has four judges, one standing councilor, and two prosecutors. It also has two attorneys, two professors, two members of the public as commissioner. The Commission has responsibilities to provides sentencing guidelines for criminal sentencers, and to research sentencing polices.
Sentencing guideline aims to realize fair and effective sentencing which reflects common sense and gets public confidence. Judges should respect sentencing guidelines in determining the kind and severity of punishment. Sentencing guidelines has no legal binding power. When a judge decides not to follow guidelines, he must clarify the rationale of sentencing.
4. The limits and problems of sentencing guideline system
The first sentencing guidelines of 2009 were on the offences of murder, rape, robbery, embezzlement, bribery, and perjury. In developing sentencing guidelines, the Commission chose to set individual guidelines on each types of offences, and not to give any numerical values on each sentencing factors unlike US-like sentencing guideline system. Each sentencing factors are defined as aggravating or mitigating one. Sentencing ranges are divided into aggravating, mitigating and general range.
Current sentencing guideline system, however, has its own limits, in that it has not yet provided guidelines on fine. Moreover, the guideline system is not compatible with sentencing principles of the Criminal Act.
There lacks clarity in the definition of sentencing factors on offence and on offender. This may not justify the principle that sentencing factors on offence shall has priority over those on offender.
5. The implementation of sentencing guidelines
In December 2009, Sentencing Commission publishes its first white paper on the implementation of sentencing guidelines. It is reported that there has been overall increases in sentencing on the types of serious crimes, such as murder, rape and robbery. On the contrary, there has been decrease on the levels of sentencing for the crimes of bribery, embezzlement, and perjury. This may be under criticism that sentencing guidelines may have little impact on the problems of inconsistency and leniency in sentencing practice on those crimes.
Part II : Comparative Studies on Sentencing Reform and Sentencing Guidelines
This research focuses on sentencing guidelines, as results of sentencing reform policies in the US, European Union, and mainly in England & Wales.
1. Rationality and consistency in sentencing
The legislator should endeavor to declare the rationales for sentencing. Where different rationals may be in conflict, indications should be provided of ways of establishing possible priorities in the application of such rationales for sentencing. Wherever possible, and in particulate for certain classes of offences or offenders, a primary rationale should be declared. Whatever rationale for sentencing are declared, disproportionality between the seriousness of the offence and the sentence should be avoided.
There are two ways worth considering to enhance consistency in sentencing. Firstly, sentencing orientations indicate ranges of sentence for different variations of an offence, according to the presence or absence of aggravating or mitigating factors, but leave courts with the discretion to depart from the orientations. Secondly, starting points indicates a basic sentence for different variations of an offence, from which the court may move upwards or downwards so as to reflect aggravating and mitigating factors. Such guidances may be adopted by legislation, guideline judgements by superior courts, an independent commission, ministry circular, or guidelines for the prosecution.
2. Sentencing reform and the development of sentencing guideline in England
In England, there are currently three sources of guidelines for sentencing : Magistrates' Court Sentencing Guideline, guideline judgements of the court of Appeal, and definitive guidelines issued by the Sentencing Guideline Council. These sources are useful for identifying aggravating and mitigating factors with particular offences.
There have been judicially created sentencing guidelines in England and Wales for over 25 years. Since the early 1980s, the Court of Appeal increasingly laid down guidelines in the form of judgments. Many are still regularly relied upon today. Even then, however it was relatively rare for the Lord Chief Justice to deliver guideline judgments and by the late 1990s, these judgments covered only a small proportion of offences.
Prior to the Criminal justice Act 2003, the Court of Appeal was assisted by the Sentencing Advisory Panel, in handling down sentencing guidelines. When drafting its judgments, the Court of Appeal was constrained by the material on which reliance could be placed. To resolve that problem, the Crime and Disorder Act 1988 created the Panel to draft and consult on proposals for guidelines and refer them back to the Court of Appeal for their consideration and, in that way, to inform the issuing of a guideline judgment. The important feature was that the laying down of guidelines remained under the control of the senior judiciary.
To ensure consistency in sentencing, the 2001 Report on sentencing framework called for new guidelines to be provided for sentencers. The 2003 Act created Sentencing Guideline Council which took over responsibility for issuing guidelines on sentencing matters. The Act also provides a clearer and more flexible sentencing framework and sets out the purposes of sentencing, general sentencing principles including the reduction in sentence for a guilty plea, the principles relating to previous convictions and offences committed on bail and statutory aggravating factors.
The Council has responsibility for developing sentencing guidelines and monitoring their use, and assessing the impact of guidelines on sentencing practice. It may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government, and promoting awareness amongst the public regarding the realities of sentencing and publishing information regarding sentencing practice in Magistrates’ and Crown courts.
In addition, the Council must consider the impact of sentencing decisions on victims, monitor the application of the guidelines, better to predict the effect of them and play a greater part in promoting understanding of, and increasing public confidence in, sentencing and the criminal justice system.
In framing and revising guidelines, the Council must have regard the need to promote consistency in sentencing, sentences imposed by courts for offences to which the guideline relate, the cost of different sentences and their relative effectiveness in preventing re-offending, and the need to promote public confidence in the criminal justice system. Every court must have regard to any guidelines which are relevant to the case.
In 2009, the Council has been reformed as the Sentencing Council for England and Wales. The Sentencing Advisory Panel and the Sentencing Guidelines Council started the ball rolling and have created a significant momentum which has led to the new Sentencing Council. Judges and practitioners alike have constantly referred to their work which itself has changed the approach to this important aspect of criminal justice.
The functions of the new Council are to prepare sentencing guidelines, to publish the resource implications in respect of the guidelines it drafts and issues, to monitor the operation and effect of its sentencing guidelines and draw conclusions, to prepare a resource assessment to accompany new guidelines, to promote awareness of sentencing and sentencing practice, and to publish an annual report that includes the effect of sentencing and non sentencing practices.
As for public confidence in sentencing, the new Council will seek to do this by increasing the quantity and quality of information and engagement available to the public on sentencing. In all of its work on confidence it will look to understand and respond to the needs of members of the public who are directly affected by sentencing, particularly as victims and witnesses.
3. Lessons from sentencing guideline system in the perspectives of comparative law and policy
Sentencing should be proportionate, consistent and transparent. In practice, sentencing system should consider efficiency and effectiveness, also. Thus, each states seek to define rationales for sentencing, and endeavor to develop a coherent set of sentencing rationales. Sentencing guidelines or guidances need to help sentencers match sentence severity with the seriousness of offences.
To enhance consistency in sentencing, the US has developed guideline system, which is the product of the United States Sentencing Commission. The goal of the US Guidelines is to alleviate sentencing disparities in the existing sentencing system, and the guidelines reform was specifically intended to provide for determinate sentencing. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. The Guidelines determine sentences based primarily on two factors: the conduct associated with the offense, and the defendant's criminal history.
In England and Wales, there are three sources of guidelines. Magistrates' Court Sentencing Guidelines and definitive guidelines issued by the Sentencing Guideline Council, and guideline judgement of the Court of Appeal. In providing guidelines, the Council must have regard the need to promote consistency in sentencing and the sentences imposed by courts for offences to which the guidelines relate. The cost of different sentences and their relative effectiveness in preventing re-offending should also be regarded. Sentencing guideline needs to promote public confidence in the criminal justice system.
Sentencing guideline systems are moves towards structured sentencing frameworks. People can have confidence in the criminal justice system when fairness in sentencing is realized. While some sentencing systems which attempt to remove or curtail judicial discretion, it is important to ensure that courts have in most cases a significant degree of discretion at the sentencing stage. To enhance consistency in sentencing, the constitution or the tradition of the legal system should be considered. As long as guidelines by independent commission, legislation, guideline judgement by superior courts, guidelines for the prosecution can contribute to fair and effective sentencing.
Part III : Analysis of Experts' Views on Sentencing Guidelines
This survey aims to see the differences on the views of judges, prosecutors, attorneys and criminal law professors, on the implementation of the first set of sentencing guidelines in 2009. It is planned that the survey would be done on 400 experts per each group, but unfortunately the court administration office refused to cooperate. This results limits on the comparison of expert's views on sentencing and sentencing guidelines. The survey consists of questionnaire on general understanding both on sentencing and sentencing guidelines, on the sentence range and factors of each guidelines, on the application of the guidelines, and on the problems and reform of sentencing guideline system.
1. Analysis of experts' view on sentencing guidelines
Experts see that current sentencing practice is not satisfactory in the matters of consistency, transparency and fairness. There is little confidence in rationality in sentencing. Main reasons of such lack of confidence are sentencing disparity on the basis of socio-economic status, political interest, and social concerns, considerable gap between statutory sentence and imposed sentences, and judge's prejudice. In particular, all expert group agree that sentencing disparity from socio-political interest will be most serious problems in sentencing practice.
It is also revealed that not many experts have understanding on the current sentencing guideline system. 44% of experts admit that they do not know the sentencing ranges and factors of individual sentencing guidelines. Over 60% of experts agree that gradual implementation of sentencing guideline would be rational. 54% of experts criticised the absence of guidelines on fine. On sentencing law, most experts point that full implementation of the sentencing guideline would be difficult, if there remain irrationality in statutory sentences. The structure of aggravating and mitigating factors are favoured by 70% of experts. Over 60% of them approve the distinction between factors on offence and factors on offender.
Most experts are confident on the future of sentencing guideline system, as they foresees that consistency, transparency, fairness and confidence on criminal court will be enhanced with progress in the implementation of the system.
Sentencing guidelines are set by each types of offences, and over 80% of experts point out that sentencing guideline on rape is the best way to establish sentencing range for each types of offences. Experts are not so much favourable of numerical evaluation of general sentencing factors and special sentencing factors. Such evaluation may enhance consistency in sentencing, but may result injustice in sentencing for individual cases.
It is also criticised by most experts that the proposed sentencing range was set by the level of 70% to 80% of existing sentencing range in practice. Statutory sentence rather be the guideline in providing proposed sentencing range.
Regarding practical experience of sentencing guidelines, experts consider most the application of sentencing guidelines on the offences of embezzlement and bribery. 99% of prosecutors have applied sentencing guideline, but mostly on the types of embezzlement and rape. It is pointed out that there need more clarification of aggravating and mitigating factors for the application of the guidelines.
2. Lessons from the survey
What is most criticised by experts on current sentencing guideline system is that the single evaluation on sentencing factors, which evaluate the value of each factors without normative differentiation. Originally, the system was designed with qualitative clarification of sentencing factors, but virtually it has similarities with numerical system, or grid system of sentencing in the US. This is why over 87% of experts responses that constant reappraisal of sentencing guidelines are required. In general, experts think that revision of sentencing guidelines should be made every two years.
As a way of reforming current system, 79% of experts recommend that a database of sentencing factors for each offence types should be established, for the purpose of evaluating sentencing decisions by each of sentencing factors.
3. Recommendation on the Sentencing Guideline System
Sentencing Commission set sentencing range on the level of 70% to 80% of existing sentencing range in practice. This approach aims to implement new sentencing system efficiently, for most sentencers will be more receptive of sentencing guidelines, which have much similarities with existing practice. Proposed sentencing ranges, however, should be revised considering statutory sentence, common sense of justice, public opinion, as well as existing sentencing pattern, so that consistency and fairness in sentencing would substantially be promoted.
Secondly, as one of the principles of current sentencing guideline system is qualitative clarification of sentencing factors, there should be a proper approach for qualitative evaluation of sentencing factors.
Thirdly, to review the effectiveness of each sentencing guidelines, the establishment of a database on sentencing factors is a must. Both rule on the revising of sentencing guideline, and the database should have their statutory basis.
Lastly, the absence of sentencing guideline on fine should be addressed to provide a complete set of sentencing guidelines.
Part Ⅳ : An Analysis of the Effects of Sentencing Guidelines on Sexual Offenders
1. Research Questions and Data
Critics of the sentencing process contend that unrestrained discretion results in sentencing disparity. They also argue that judges who are not bound by sentencing rules or guidelines but free to fashion sentences as they deem appropriate, often impose different sentences on similarly situated offenders or identical sentences on offenders whose crimes and characteristics are substantially different. Allegations of “lawlessness” in sentencing reflect concerns about discrimination as well as disparity. Concerns about disparity in sentencing led to a “remarkable burst of reform” that began in 2009.
Against the backdrop of the beginning of the sentencing reform, this paper presents the findings from a study of sentencing and its outcomes. This report also evaluates the impact of the Sentencing Guidelines on inter-judge sentencing disparity, which is defined as the differences in average nominal prison sentence lengths for comparable caseloads assigned to different judges. After a brief review of the Guidelines and the mechanisms through which they may affect the disparity, we compare estimates of inter-judge disparity before and after implementation of the Guidelines. The second aim of this study is to examine the extent to which judges make a decision in compliance with the sentencing guidelines. The third is to explore the correspondence between the formal reasons for their sentencing decisions and the factors to predict their decision-making behaviour. In other words, we will inquire whether there are some changes in types or weight of the significant factors owing to the new sentencing system. In addition, another principal aim of this study is to determine the multi-level factors that have an effect on sentencing decisions.
This study was commissioned to provide information on sentencing practices for sexual offences using a record-based analysis. For the study, data was collected on approximately 1,140 adult cases sentenced in 2006 to 2010 for rape, indecent conduct by compulsion against victims of thirteen and over, and rape, disgraceful conduct by compulsion against children under 13 years of age. Data was sought from prosecutorial and court files on certain case-related factors (e. g. nature of offence) and offender-related factors as well as decisions made on a case at the sentencing stage (e. g. length of custodial sentence). It involved thirteen courts.
2. Major Results
A. The Actual conditions of complying with the sentencing guidelines
In the majority of cases, trial judges have followed the applicable guidelines when imposing sentences. The rate of guidelines compliance was about 70%. Judges under the sentencing guidelines tend not to depart from the guideline ranges significantly. Most of the judgments were placed in the permitted scope of sentences, but 20% were out of the permissible ranges.
B. Changes in custodial periods
The result shows that inter-judge disparity in nominal sentencing is less pronounced in the Guidelines era than it was in the era of discretionary sentencing. The prediction regarding the standard deviation and distribution of cases was also confirmed. The standard deviation of total sentences for guideline cases was considerably smaller than that for non-guideline cases in all of the tests. Conversely, sentences had a greater standard deviation and thus varied more widely when judges were not constrained by the guidelines. This means that one of the primary intentions of establishing guidelines was indeed realized. Such results may be accepted as the evidence of marginal improvement in sentencing uniformity when comparing the guidelines with traditional sentencing systems.
C. Evaluation of sentencing factors
It appeared that there were more or less changes in the types and weight of the significant variables that have an influence on sentencing. In the case of rape, some variables such as special robbery-rape (rape committed with robbery in group or using dangerous arms and instruments), recidivism of sexual offending, and intentional commitment still have a significant influence on the sentence irrespective of the introduction of the sentencing guidelines. However, after implementing the guidelines, the influence of the variables such as recidivism of non-sexual offences, criminal career of re-offending sex crimes, violence that resulted in imprisonment, sexual offending by relatives, multiple committing during a single criminal opportunity, serious bodily injury, and offenses under the influence of alcohol or drugs has been weakened. Instead, arousing the victim's extreme sexual shame and victim's expression of forgiveness were found to replace the above-mentioned variables.
A variable named intentional committing was significant in explaining the sentence of indecent conduct by compulsion and a variable called fictitious indecency was still suited to explaining the sentencing of rape and indecent conduct by compulsion against children under 13 years of age regardless of the implementation of the sentencing guidelines. In the case of rape and indecent conduct by compulsion against victims under 13 years of age, variables such as multiple committing during a single criminal opportunity, arousing victim's extreme sexual shame, and non-criminal career, etc. have newly influenced the sentencing after the new sentencing guidelines were implemented.
The results of a regression analysis show that general sentencing factors, such as intentional committing, as well as special factors have an effect on sentencing, and, thus, it is needed to reform the current system that brings judges to select the basic ranges of prison sentences under the special sentencing factors.
It is found that the current sentencing guidelines have not embraced a wide range of sentencing factors, that are not included in the standards but affect the judge's ruling substantially. In rape cases, the offenders who raped lots of victims or committed repeatedly against one victim, either concealed or tried to conceal their criminal acts, and did not regret their behaviors were likely to be imposed harsher sentences. In contrast, judges tends to be lenient with young or older rapists. The possibility of social condemnation on the offender's behavior is a factor to be able to increase prison periods in the case of indecent conduct by compulsion, and the probability of second conviction, and perverted sexual offending can also influence the penalty negatively in the cases of rape and indecent conduct by compulsion against victims under 13 years of age.
Although the Sentencing Commission's extenuating circumstances for probation have worked in the same way as the sentencing guidelines were expected to work, but there is an exceptional variable to influence the determination of a suspended sentence, which is not included in the formal sentencing standards. For example, if the offender committed a sexual offence under the influence of alcohol or drugs and the judge accepts that extenuating factor, he can be put on probation. On top of this, for an offender of tender age, a minor offense is a positive factor for probation.
D. Exploring the heuristic sentencing factors
As the results of the regression analysis on sentencing factors not included in the sentencing standards show, sadistic or perverted offenders or those who did not receive quarter from the victim(s), committed crimes repeatedly against one or more victims for a long time, and threatened the victim(s) not to report to the police received substantially severer sentences than any other type of offenders. There also is evidence that judges' assessments of offense seriousness and offender culpability interact with their concerns about the practical effects of incarceration on children and families to produce more lenient sentences for “familied” defendants. A person who committed a sexual offence for reasons of economic motives gets a tougher sentence than a person who committed crime out of sexual motives.
This study examined the possibility of discrimination that might result from differential treatment based on the designation of private lawyers. But there was no evidence of it.
It was revealed that sentencing decisions were influenced not only by the official sentencing factors but also by informal factors such as the characteristics of individual cases and defendants. As a result, if a sentencing regime fails to take account of such characteristics of the offense or offender, which are believed to be relevant to a just sentence, then its results may be unwarranted even if there is no measurable disparity due to the identity of particular decision-makers.
In the current sentencing guidelines, little consideration is given to concerns of the victims. Not only positive attitudes to the offender(s), but also negative ones must be taken into account for sentencing.
Beyond depending upon criminal careers in risk evaluation of re-offending, systematic measures must be introduced, considering the offender's family history and circumstances, the parental care types of his parents, his attitudes toward the law and norm, antisociality, self-control, neurophyisiological characteristics that caused sex crimes, and future prospects, etc. The sex offender risk assessment, diagnosis of psychopath, or presentence investigation (PSI) need to be carried out for all sex offenders.
It is anticipated that the findings of this study will be useful for in developing the Sentencing Guidelines. These guidelines are designed to support sentencers in their decision making and promote consistency and transparency in sentencing.
Part Ⅴ. A Study on the Sentencing Investigation System in Connection with the Implementation of Sentencing Guidelines
1. Background and necessity of Sentencing Investiagion System
In order to make a judgment about assess the eligibility of community-based treatment for juvenile offenders, a criminal sentencing investigation has been instituted by implementing Pre-sentence Investigation by probation officers since the probation law was legislated in 1988. After that, the Pre-sentence Investigation was expanded to Criminal Sentencing Investigation for every offender including juvenile offenders and adult offenders.
The first Sentencing Guidelines resolved by the Sentencing Commission were implemented from 1st of January, 2009, and they have been applied to eight major crimes - murder, bribery, sexual crimes, robbery, embezzlement, malpractice, perjury, and false incrimination. These guidelines specify important sentencing factors to be considered in the process of sentencing. So the existence of such factors has become chief among the issues in the criminal justice procedure. A professional investigation of sentencing factors is needed to apply sentencing guidelines because it is difficult to understand the details of sentencing factors and suspended sentence factors only with the record of al awsuit.
Under such circumstances, the court has recruited 21 investigators and has educated them. The court gave certificates of appointment to the 21 investigators on 10th of July, 2009 and they started their work from 20th of July, 2009. In this way, the Criminal Sentencing Investigation System by investigators has been instituted. The Ministry of Justice and the prosecution had claimed that sentencing investigation by investigators was an illegal act, but the Supreme Court has judged that it was a legal act. After many twists and turns, the sentencing investigation system has been implemented for 1 year with sentencing guidelines. Now, it is time to try to understand the current situations of the sentencing investigation system and evaluate whether it has been implemented appropriately or not. Furthermore, we need to think about how to organize the relationships between pre-sentencing investigation which has been conducted by probation officers and sentencing investigation by investigators. The perspective of comparative law will be a useful standard in doing so.
2. Review and comparison with other countries.
As you know, the sentencing investigation and pre-sentencing investigation system date back to the time when the judge made a decision about the eligibility of probation for defendants based on scientific investigations carried out by probation officers in the United States, where the process of sentencing and that of deciding guilt or innocence are separated. The function of those systems has been expanded to cover general treatment for offenders. The probation officer belonging to the Office of the Federal Court Administration is in charge of sentencing and pre-sentencing investigations under the order of the court. The head of a probation office is appointed by the U.S District Court and qualified probation officers are appointed by the head of the probation office. In this way, probation officers belong to the Office of the Court in the U.S. and carry out their duties, such as pre-sentencing investigation, under the order of the court. However, they are independent from the court in managing budgets and executing their duties. Depending on the state in the U.S., many probation offices belong to the State Government and others belong to the State Court or the County Government.
In the sentencing process of the U.K, the court refers to a pre-sentencing report, a medical treatment report and reports on the ability to adapt to rehabilitation facilities for alcohol and drugs. The prosecutor and defendant can also submit materials for sentencing. However, there is no rule for investigating and collecting sentencing materials by the prosecutor and defendant. There is a rule for the investigation procedure by the court only. The U.K. probation officers used to belong to the National Probation Service, under the Home Office. However, since the Ministry of Justice was founded on 9th of May, 2007, the National Offender Management Service under the Ministry of Justice has been in charge of both probation and correction. As a result, probation officers now belong to the National Offender Management Service. The sentencing process and the process to decide guilt or innocence are not separated in Continental Law. Like the U.S. pre-sentencing investigation system, there is a Court Assistance Agency System in Germany, a typical country with continental law. By the way, there are no rules on conditions to use the court assistance agency system and on how to use it in the German Criminal Procedure Act and the organization of a Court Assistance Agency differs from states. The Court Assistance Agency, therefore, belongs to the court, the prosecution or social welfare facilities.
As the French Criminal Justice System aims at offenders’ social reintegration by individualizing punishments, it is necessary to investigate the personal history, family background, financial means, education, job, and physical and mental health, etc. of an offender. To realize the personalization principle of punishments, a police officer conducts an investigation into facts constituting an offense under the command and supervision of the prosecutor or judge. And a probation officer who belongs to the Probation and Insertion Prison Service, under the Ministry of Justice and a social worker who is hired by the government, both of whom are functionally independent from the prosecutor or judge, carry out the sentencing investigation and investigation of the personality of a suspect or a defendant.
A prosecutor investigates every fact for sentencing, and there is no sentencing investigation system which the prosecutor and judge can use in Japan in which where the process of sentencing and that of deciding guilt or innocence are not separated. The Supreme Court tried to institute a pre-sentencing or sentencing investigation system in the 1950s, but failed because of the opposition of the Ministry of Justice and the Bar Association. The Ministry of Justice and the Bar Association agreed on the necessity of a pre-sentence investigation system. But they were opposed to the system as it would lead to the administrative power being invaded by the judicial power, a violation of both the adversarial system and the principle of direct hearing, and inconsistency with the Japanese criminal procedure system in which the process of sentencing and that of deciding guilt or innocence are not separated.
3. Conclusion and proposal
We need to consider the followings when we discuss ways to improve the sentencing investigation system from a longer perspective.
The pre-prosecution investigation, pre-sentencing investigation and probation work require probation officers’ professionalism, while sentencing investigation by investigators needs justice of investigations into objective facts. Therefore, if the work of probation officers and investigators is divided efficiently in a way that they can make the best use of their professionalism and specialty, the repetitious work done by different departments and the waste of human resources will be avoided. We need to discuss the sentencing investigation system on such premise. However, Ultimately, it is the most efficient process to unify organization and operation of probation and sentencing investigation.
As stated earlier, the necessity of the sentencing investigation system was agreed on in Japan, but has failed to be introduced as the Ministry of Justice and the Bar Association were opposed to having investigators under the exclusive control of the court. However, the results of comparative law studies show that the important thing is not the affiliation of sentencing investigation agents but the functional independence related to the execution of their duties. The related government agencies need to work in a close collaboration with each other while improving the efficiency and professionalism in performing their duties. Unlike Japan, the Korean government has already instituted the system of pre-sentencing investigation and probation work conducted by probation officers and sentencing investigation done by investigators. However, it is still necessary to modify the imperfect laws and regulations to stabilize the unstable relationships between the pre-sentencing investigation system and sentencing investigation system.
Part VI : Review on the Outcomes of Sentencing Guideline within Sentencing Reform in Korea
1. Sentencing guideline and sentencing reform policy
Sentencing guideline system can be understood as a way of building more rational and systematic sentencing framework, and of restoring public confidence in criminal justice. Sentencing reform, in the context of criminal justice reform, may bring rationalization in sentencing matters and build social consensus on the principles of sentencing. Here, we may find the meaning and values of sentencing guideline system.
Firstly, sentencing guidelines make the process of sentencing decision transparent. This will result predictability in sentencing, and thus promote confidence in criminal sentencing.
Secondly, sentencing guidelines clarify sentencing factors, and thus minimize judicial prejudice and sentencing disparity.
Thirdly, sentencing guidelines provide guidance on suspended sentence of imprisonment. This prevent judges from exercising unjust discretion in imposing suspended sentence.
Fourthly, sentencing guideline provides its own sentencing range, which results departure from legal provisions on sentencing under Korean Criminal Act. As long as such gap between sentencing laws and guidelines remains, the effectiveness of sentencing guideline system may not be guaranteed. Sentencing guideline needs to respect legislative scheme on sentencing, and to develop more principled way of evaluating sentencing factors.
Lastly, individual sentencing guidelines for each types of offences does not cover all aspect of such offence. There is no guidelines on fine. As the sentencing guidelines are made offence by offence, sanction by sanction, sentencers have to face incompleteness in current sentencing guidelines. This may result more disparity in sentencing decision.
2. Proposals on the reform of sentencing guideline system
First of all, sentencing factors under current sentencing guidelines need to be reviewed and rearranged. For this task, a database on sentencing practice should be developed to understand which factors are considered by sentencers in courts. Such data will be useful in the steps of revising sentencing guidelines. There also needs qualitative evaluation on sentencing factors. It surely is demanding task to calculate the effect of individual factors in sentencing decisions from normative or qualitative perspectives.
The analysis of sentencing decisions on cases of sex crimes, which was made as a part of this research, tells that some sentencing factors actually are not considered in sentencing decisions, even though sentencers allege so. In some cases, aggravating factors allegedly considered by the judge, actually considered conversely, as mitigating factors. This research suggest that sentencers may have discretion to weigh each sentencing factors in each cases. Under current system, judges are just required to identify general and special sentencing factors, and to consider each factors with same weight.
The survey of experts' view on sentencing guideline scheme shows that constant reappraisal of sentencing guidelines is a must, considering that such guidelines should be able to reflect changes in law and society. A process for revising sentencing guidelines should be institutionalized.
This research indicates that the absence of principled sentencing is the main reason of inconsistency and unfairness in sentencing. Rationales of sentencing should clearly be declared in sentencing legislation. Moreover, current scheme of statutory sentence should be reformed under the principle of proportionality. Aggravating and mitigating factors in criminal laws, also should be reviewed for more systematic sentencing legislation. Overall reform of sentencing laws will be significant in bring rationality and fairness back to current sentencing framework. Consistency, fairness and transparency in sentencing will promote public confidence in criminal justice system.