I have written a somewhat longer introduction to help people understand what this proposal is about and why it is necessary. It also seeks to explain length and intent of the amendment and why I believe that that length is necessary.

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Who determines when "all evidence of possible mitigating circumstances" has been submitted?

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
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Who determines when "all evidence of possible mitigating circumstances" has been submitted?

I'll point to the existing language:

3. Case Procedure
(6) Once the assigned justice has all necessary information and evidence, they will analyze the question with all deliberate speed to deliver an opinion. Any individuals involved in the crafting of the opinion must be named within it. The opinion must be approved by another justice not recused from the case.

In other words, it would still be up to the judge. This language is rather a general guideline/statement of intent. It is primarily there to help interpret the rest of the judicial act to prevent misinterpretations or creative interpretations leading to new procedures that would harm the integrity/purpose of the court.

Furthermore, I believe that generally, I the judge were to ask for submission of all evidence (perhaps specifically requesting potential mitigating evidence as well) before a reasonable deadline, this requirement would be fully satisfied, so this language should never be able to affect normal court cases, unless procedure were significantly altered in ways that the legislature has not envisioned or provided a legal basis for.

It should only ever be relevant in cases of absolutely egregious misconduct or to more easily facilitate an appeal in cases where it can be shown that evidence of significant mitigating circumstances was not submitted before (or perhaps not available before). But in this case, the language of section 6.3. applies again, so the court would be able to dismiss appeals that are frivolous, meritless or in bad faith and possibly penalise people if necessary.

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I don't have issues with the general intent of the bill, though I'm not a fan of how it's put into practice in the proposal. In general, I prefer language that eschews specific enumeration in favor of general language that is robust to changes in other places of the law and doesn't leave too much room to "rules lawyering". Particularly in this case, the bill is awkward to read as, for example, 5.4.e-5.4.f are a separate item from 5.4.a-5.4.d, particularly since we tend to use sub-sections exclusively for enumerations. I would like to see that cleaned up significantly before it goes to a vote.

I don't see why the court has to be in deadlock over this issue. The High Court is the sole body with judicial authority in the region, so unless their lawful procedure were to prevent a ruling on it (in which case it would be the job of the assembly), they can rule on the legality of plea bargains. That being said, Sasha's argument regarding the judge becoming prejudicial is compelling, and supported by Judicial Act Article 2.1. As it stands, I would say that plea bargains during a criminal case are legal if and only if the bargain is not performed by the judge assigned to the sentencing case.

Now, to clean up the actual language and make it more generally applicable, it might be worth going back to what we're trying to solve. It's not the act of a lessened sentence for an individual that was indicted but is cooperative that is the problem, but rather the process by which such a lessened sentence can be brought about, and even formalized, by the same judge delivering the verdict and potentially the sentencing in the first place. The Judicial Act does separate sentencing from verdict by design, so this may be an appropriate place to hook into the law.

Another point is that, as OP already stated, in our non-adversarial system, we don't have a classical "prosecutor" role. Such a prosecutor would be able to handle plea bargains, but not be responsible for delivering the sentencing; that is still the job of the judge, who handles that sentencing based on the sentencing recommendation delivered by the prosecutor.

Putting these two components together, I can think of a simple and elegant solution: The criminal judge may not be assigned to the sentencing case. That way, plea bargains during the criminal trial can be made if appropriate, but the only thing the criminal judge making the bargain may promise is a sentencing recommendation with a lighter sentence based on the extent of the charged individual's cooperation. That should do it, right?

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I don't have issues with the general intent of the bill, though I'm not a fan of how it's put into practice in the proposal. In general, I prefer language that eschews specific enumeration in favor of general language that is robust to changes in other places of the law and doesn't leave too much room to "rules lawyering". Particularly in this case, the bill is awkward to read as, for example, 5.4.e-5.4.f are a separate item from 5.4.a-5.4.d, particularly since we tend to use sub-sections exclusively for enumerations. I would like to see that cleaned up significantly before it goes to a vote.

I don't see why the court has to be in deadlock over this issue. The High Court is the sole body with judicial authority in the region, so unless their lawful procedure were to prevent a ruling on it (in which case it would be the job of the assembly), they can rule on the legality of plea bargains. That being said, Sasha's argument regarding the judge becoming prejudicial is compelling, and supported by Judicial Act Article 2.1. As it stands, I would say that plea bargains during a criminal case are legal if and only if the bargain is not performed by the judge assigned to the sentencing case.

Now, to clean up the actual language and make it more generally applicable, it might be worth going back to what we're trying to solve. It's not the act of a lessened sentence for an individual that was indicted but is cooperative that is the problem, but rather the process by which such a lessened sentence can be brought about, and even formalized, by the same judge delivering the verdict and potentially the sentencing in the first place. The Judicial Act does separate sentencing from verdict by design, so this may be an appropriate place to hook into the law.

Another point is that, as OP already stated, in our non-adversarial system, we don't have a classical "prosecutor" role. Such a prosecutor would be able to handle plea bargains, but not be responsible for delivering the sentencing; that is still the job of the judge, who handles that sentencing based on the sentencing recommendation delivered by the prosecutor.

Putting these two components together, I can think of a simple and elegant solution: The criminal judge may not be assigned to the sentencing case. That way, plea bargains during the criminal trial can be made if appropriate, but the only thing the criminal judge making the bargain may promise is a sentencing recommendation with a lighter sentence based on the extent of the charged individual's cooperation. That should do it, right?

 

I have done my best to clean up the language - I hope it satisfies.
I suppose I was originally writing it more the way I'm used to seeing German laws and such because that's the way it made it sense to me.

As for deadlock, I'd like you to read Tsu's opinion on this: https://tspforums.xyz/thread-7000-post-1...#pid184328
(A brilliant summary of the dilemma in my opinion)

As for your suggestion, I believe that it is not a solution and may even exacerbate the problems:

1. Prejudice is not only relevant in determining sentencing but also in determining guilt. Your suggestion does nothing to resolve that.
   
2. If the defendant agrees to a plea bargain, the sentencing judge will likely have a very limited amount of evidence regarding the circumstances of the case, since the idea of plea bargains is to cut short that part of the trial.
   Therefore, the sentencing judge would either de facto be forced to go along with the trial judge's suggestion or would have to basically do a whole new evidence-gathering phase, increasing the overall workload of the court (completely negating the main benefit of plea bargains) and effectively make the sentencing case a kangaroo court, since it is supposed to be a neutral factfinding mission in an umprejudiced court in which, at the same time, the guilt of the defendant has already been determined.
   
3. You are assuming that the sentencing judge would be willing to go over the case in sufficient detail to give a truly independent and impartial ruling. The reality is that the sentencing judge is likely to not read and consider the trial in too much detail and instead (mostly) follow the trial judge's recommendations - regardless of whether there was a plea bargain or not. This may exacerbate the issue of prejudice because it gives the proceeding the appearance of fairness and impartiality while not actually being so.
   
4. The last plea deal was conducted in private channels and the discussion has, to date, not been released to the public. If such plea deal negotiations are visible to the sentencing judge, it will likely influence them and make them even more likely to side with their colleague. And if the negotiations are secret to the public, oversight becomes very difficult (at best!) and it will no longer be clear how much the sentencing judge is actually seeing, in other words, the result would be even nore backroom business.
   
5. When judges are expected to either be impartial or presume guilt depending on the case, that is likely to lead to confusion (on all sides) and prejudice. It will also decrease transparency and significantly decrease trust in the one institution that should be the most transparent and trustworthy, the one whose duty is to uphold our laws.
   

Plea deals without an actual separate prosecutor role (which can exist even in non-adversarial courts) will always lead to a prejudiced, intransparent and untrustworthy court. Regardless of my opinions on plea deals in general, we should not consider them an option unless we actually introduce a prosecutor role - because plea deals without prosecutors do not and cannot work.

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Since more than a month has passed and no further concerns have been stated or further comments made despite repeated requests to do so, I am motioning this for a vote.
I will withdraw this motion if anyone requests it.

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I shall second this motion

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Suddenly, debate! Two small suggestions of wording:

- cricumstances should be circumstances in 1.4


- technically under this draft, a judge is allowed to coerce someone into self-incriminating... as long as that person is non-binary, and therefore not a 'him-/herself'. While this is pretty unlikely to really come up as a loophole, I don't believe any of our other laws mention gendered pronouns at all, and there's a really easy solution here: 

(6) Justices are prohibited from coercing admissions of guilt or otherwise require the defendant to self-incriminate, especially if this accomplished by using the threat of a harsh sentence.

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I have edited the proposal in accordance with the Chair's suggestion.

SInce it was a correction in language rather than an actual content change however, I motion to waive further debate time and to put the last revised version to a vote (and withdraw my previous motion for the previous version).

(This post was last modified: 11-05-2019, 12:15 PM by Sasha.)

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I second the motion to waive debate time.

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