Sentencing Guidelines in South Korea: Lessons from the American Experience
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This article discusses the enactment of the Sentencing Reform Act by the United States Congress, the enactment of sentencing guidelines by the South Korean legislature, and the effects of these enactments on the U.S. and on South Korea. The Sentencing Reform Act in the U.S. was the culmination of almost a decade of hearings, committee mark-ups and floor consideration in the U.S. Congress begun in 1976 with the introduction of a bill by Senator Edward M. Kennedy authorizing the appointment of a commission for the purpose of promulgating sentencing guidelines for court consideration. After enactment in 1984, for over twenty years sentencing power was gradually consolidated into the federal prosecutor’s office until in 2005 the United States Supreme Court in a landmark decision deemed unconstitutional the mandatory nature of the sentencing guidelines. However, as the United States Supreme Court was ending the twenty year legislative experiment in mandatory sentencing, the South Korean legislature was beginning the process of enacting legislation that would lead to strict sentencing guidelines for South Korea. The historical background and current approaches of South Korea and the United States in the sentencing guideline area are of interest to prosecutors, the judiciary and public defenders in South Korea. The bulk of the article focuses on the U.S. experience as a guide for the South Korean judiciary, especially due to the current divergence between the U.S. and South Korea in this area. While the United States judicial system is moving decisively towards a system giving greater discretion to the judiciary, South Korea is moving decisively towards a sentencing system giving greater power to the prosecution. In analyzing this divergence, this article presents the original reasons behind mandatory sentencing in the United States, the long debate in the United States as to the efficacy of mandatory sentencing and the current course charted by the U.S. Supreme Court. The article also briefly presents and discusses the history of sentencing guidelines in South Korea, and discusses whether the U.S. experience can be informative in the debate as to whether sentencing guidelines are suitable for the issues currently facing South Korea.
Abstract
This article discusses the enactment of the Sentencing Reform Act by the United States Congress, the enactment of sentencing guidelines by the South Korean legislature, and the effects of these enactments on the U.S. and on South Korea. The Sentencing Reform Act in the U.S. was the culmination of almost a decade of hearings, committee mark-ups and floor consideration in the U.S. Congress begun in 1976 with the introduction of a bill by Senator Edward M. Kennedy authorizing the appointment of a commission for the purpose of promulgating sentencing guidelines for court consideration. After enactment in 1984, for over twenty years sentencing power was gradually consolidated into the federal prosecutor’s office until in 2005 the United States Supreme Court in a landmark decision deemed unconstitutional the mandatory nature of the sentencing guidelines. However, as the United States Supreme Court was ending the twenty year legislative experiment in mandatory sentencing, the South Korean legislature was beginning the process of enacting legislation that would lead to strict sentencing guidelines for South Korea. The historical background and current approaches of South Korea and the United States in the sentencing guideline area are of interest to prosecutors, the judiciary and public defenders in South Korea. The bulk of the article focuses on the U.S. experience as a guide for the South Korean judiciary, especially due to the current divergence between the U.S. and South Korea in this area. While the United States judicial system is moving decisively towards a system giving greater discretion to the judiciary, South Korea is moving decisively towards a sentencing system giving greater power to the prosecution. In analyzing this divergence, this article presents the original reasons behind mandatory sentencing in the United States, the long debate in the United States as to the efficacy of mandatory sentencing and the current course charted by the U.S. Supreme Court. The article also briefly presents and discusses the history of sentencing guidelines in South Korea, and discusses whether the U.S. experience can be informative in the debate as to whether sentencing guidelines are suitable for the issues currently facing South Korea.
참고문헌 (33)
- Brooks, Karl, "Sentencing Reform in Historical Context: The Progressive Vision of Sentencing Commissions", Society for History in the Federal Government Annual Conference (2002)
- Rothman, David, "Sentencing Reform in Historical Perspective", Crime and Delinquency, 29, pp.631~647 (1983)
- THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE, "Allen, Francis A.", ~ (1981)
- National Commission on Reform of the Federal Criminal Laws, "Dep’t of Justics", DOJ, ~ (1971)
- Becker, Gary G., "Crime and Punishment: An Economic Approach", J. Pol. Econ, 76, pp.169~ (1968)
- Charles J. Ogletree, "The Death of Discretion? Reflections on the Federal Sentencing Guidelines", Harv. L. Rev, 101, pp.1938~ (1988)
- Ilene H. Nagel, "Structuring Sentencing Discretion: The New Federal Sentencing Guidelines", J. Crim. L. & Criminology, 80, pp.883~ (1990)
- Marvin E. Frankel, "Lawlessness in Sentencing", U. Cinn. L. Rev, 41, pp.1~2 (1972)
- Gaudet, Harris, "Individual Differences in the Sentencing Tendencies of Judges", J. Crim. L. & Criminology, 23, pp.811~ (1933)
- Wilkins, "Disparity in Dispositions: The Early Ideas and Application of the Guidelines, in SENTENCING REFORM 2", pp.11~ (1987), Wasik & Pease
- THE SECOND CIRCUIT SENTENCING STUDY, "A. Partridge", THE JUDGES, ~ (1974)
- SENTENCING GUIDELINES: STRUCTURING JUDGICIAL DISCRETION, "L. Watkins", THE FFEASIBILITY STUDY, ~ (1978)
- William Austin, "A Survey of Judges’ Responses to Simulated Legal Cases: Research Note on Sentencing Disparity", J. Crim. L. & Criminology, 68, pp.306~ (1977)
- Shari Seidman Diamon, "Sentencing Councils: A Study of Disparity and Its Reduction", U. Chi. L. Rev, 43, pp.109~ (1975)
- Andrew Hopkins, "Is There a Class Bias in Criminal Sentencing?", Am. Soc. Rev, 42, pp.176~ (1977)
- Joseph C. Howard, "Racial Discrimination in Sentencing", Judicature, 59, pp.121~ (1975)
- Ilene Nagel, "Gender and Crime: Offense Patterns and Criminal Court Sanctions", CRIME & JUSTICE: AN ANNUAL REVIEW OF RESEARCH, 4, pp.91~ (1983)
- Comment, "Texas Sentencing Practices: A Statistical Study", Tex. L. Rev, 45, pp.471~ (1967)
- Edward M. Kennedy, "Toward a New System of Criminal Sentencing: Law with Order", Am. Crim. L. Rev, 16, pp.353~359 (1979)
- Foreword to O’Donnell, Churgin and Curtis, TOWARD A JUST AND EFFECTIVE SENTENCING SYSTEM, viii, "Edward M. Kennedy", 1977)., ~
- Alan M. Dershowiztz, "Let the Punishment Fit the Crime", N.Y. Times, ~ (1975)
- Raymond I. Parnas, "The Influence Behind, Substance and Impact of the New Determinate Sentencing Law in California", U.C. Davis L. Rev, 11, pp.29~ (1978)
- Douglas A. Berman, "Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines", Notre Dame L. Rev, 76, pp.21~95 (2000)
- William W. Wilkins, "Phyllis J. Newton, and John R. Steer, The Sentencing Reform Act of 1984: A Bold Approach to the Unwarranted Sentencing Disparity Problem", Crim. L. Forum, 2, pp.355~ (1991)
- Sentencing Guidelines: A Dismal Failure, "Jose A. Cabranes", N.Y.L.J, 2~ (1992)
- Albert W. Alschuler, "The Failure of Sentencing Guidelines: A Plea for Less Aggregation", U. Chi. L. Rev, 58, pp.901~ (1991)
- Douglas A. Berman, "A Common Law for this Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking", Stan. L. & Pol’y Rev, 11, pp.93~ (1993)
- "Zero to Life: The Injustice of White-Collar Sentencing Rules"[URL]
- James K. Glassman, "Regulatory Hysteria", Scripps Howard News Service, ~ (2004)
- Daniel J. Freed, "Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers", Yale L.J, 101, pp.1681~ (1992)
- The Annual Report to the National Assembly of 2007, "Korean Sentencing Commission", 165~ (2007)
- Saha N., "Origin of the Koreans: a populationgenetic study", Am. J. Phys. Anthropol, 88, pp.27~36 (1992)