| Popis: |
The imposition of punishment is a judicial exercise. This is a clearly a requirement of procedural fairness. At the same time, the role of the judge at sentencing is of central importance to the characterization of punishment as lawful or just. There might be said to be consensus that the rule of law is dependent on some form of adjudication. The nature and extent of the judicial power to interpret the law is nevertheless very much contested. This conflict at the heart of the judicial role between activism and restraint in the interpretation of the law takes on particular resonance at the sentencing stage. Concern about the potential for judges to overstep their institutional mandate mirrors anxiety about judges usurping the will of the majority. Notwithstanding such concerns, it is argued in this chapter that sentencing provisions must be framed in such a way as to ensure that judges have sufficient room to prevent the imposition of punishment which violates the principles of legality, equality, or the respect for certain human rights, notably the prohibition on the imposition of inhuman or degrading punishment. This understanding of the importance of the judge allows for reconsideration of a number of sentencing practices and laws, notably the role of the judge in plea-bargaining proceedings, and mandatory and indeterminate sentences. |
