What drives Taiwan judges

Politics Taiwan Politics
1

In another thread someone asked about some high profile case “was it a fair sentence or politics”. The correct answer is, it is neither. There is perhaps a lot of misunderstanding about how Taiwanese District Court judges decide their verdicts and their sentences. As to how they decide the guilt or innocence, that is a whole sad saga in and of itself and I will not even start on that. I will kind of limit the discussion to the sentencing.

First the law; the core sentencing provision is (I have not edited this yet, this is the rough english translation):
Chapter 8 Discretionary Punishment and Its Increase and Reduction
Article 57
The determination of a punishment shall be based on the responsibilities of the offender and consider all the circumstances, and special attention shall be given to the following items:

  1. The motive and purpose of the offense
  2. Stimulation at the moment of the commission of the offense (do not laugh and get your minds out of the gutter!, it means the “immediate motivation” or “the trigger” for the event)
  3. The means used for the commission of the offense
  4. The offender’s living condition
  5. The disposition of the offender
  6. Education and intelligence of the offender
  7. Relationship between the offender and victim of the offense
  8. The degree of violation of obligations by the offender
  9. The danger and damage caused by the offense
  10. The offender’s attitude after committing the offense.

Most felonies in Taiwan carry sentences with wide ranges.

Now the real deal; here is the ten second version. Taiwanese criminal sentencing is widely criticized by all sectors of the legal profession for being wildly erratic and too light. Erratic meaning the same case would get wildly different sentences if sentenced by different judges; too lenient means too little prison time. Because lack of uniformity and excessive leniency are the two major problems with Taiwanese sentencing, I have recommended to the Judicial Yuan that they go with a structured sentencing system for Taiwan. In particular I have recommended the US Federal Sentencing Guidelines. As is their norm, the Judicial Yuan was nice enough to ask and then simply fobbed off my recommendation. Which is fine with me. I am proud to state none of my recommendations have ever been followed by any major Taiwanese government agency. So I can claim, correctly, “it aint my fucking fault!”

Just kidding, now I am having a nervous breakdown just like Prosecutor Chang, actually I should not joke about that, I know him and am sorry for him and his family. Okay back to sentencing.

The real deal is, Taiwanese judges are first and foremost civil servants. Ignore all the horseshit about judicial independence, they are basically civil servants who are looking to move up in the food chain.

There are only four key factors to moving up in Taiwan judiciary.
One: keep your reversal rate as low as you can.
Two: close all your fucking cases on time.
Three : have good relations with your immediate overlord. And this means do not be or appear to be smarter than he/she is and avoid getting caught in scandals.
Four do not get caught in a scandal (note, you can take bribes, play grab ass with the KTV girlies and go into business with gangsters—all of that is fine—but do not get caught!)

That is all there is to it. It is not about fairness, justice, truth, wisdom, politics, jurisprudence, independence, doing what is right or anything of that ilk. It is like working in a factory: keep your nose clean, finish your work on time, do what your boss tells you. I am always reminded of an old Bruce Springsteen song when I am asked about Taiwanese judges. He is singing about a Border Patrol officer and the lyrics go:
I was good at doing what I was told,
I kept my uniforms pressed and clean…

That could be the theme song for Taiwanese judges.
Okay I gotta get to work,
Take care,
Brian

2

#'s 8 & 10 really put some latitude and discretion into the mix…wow.

3

Brian - this is really an awesome post, Thank You!!

[quote=“brianlkennedy”]
10. The offender’s attitude after committing the offense.[/quote] Now I know why all the tearful apologies after the great Cannibis/Marijuana scandal recently. Also, why people were jumping up and down in outrage when Chao Chien-Ming was unapologetic during his proceedings. They are used to the weeping, tearful apologies that are motivated by sentencing considerations rather than conscience…

[quote=“brianlkennedy”]I am proud to state none of my recommendations have ever been followed by any major Taiwanese government agency. So I can claim, correctly, “it aint my fucking fault!”[/quote] :roflmao: :roflmao: :roflmao: :roflmao:

[quote=“brianlkennedy”]The real deal is, Taiwanese judges are … basically civil servants who are looking to move up in the food chain. [/quote] Hmmmm, this is very good point that actually explains a lot of what we see…

[quote=“brianlkennedy”]There are only four key factors to moving up in Taiwan judiciary.
One: keep your reversal rate as low as you can.
Two: close all your fucking cases on time.
Three : have good relations with your immediate overlord. And this means do not be or appear to be smarter than he/she is and avoid getting caught in scandals.
Four do not get caught in a scandal (note, you can take bribes, play grab ass with the KTV girlies and go into business with gangsters—all of that is fine—but do not get caught!)[/quote] Yep, all the “measurables” with a heavy dose of good old-fashioned ‘Guan Xi’ thrown in there…

4

sd

5

As to the database open to the public—not that I am aware of. Case files in Taiwan are not “public records” like they are in California.

As to “reported cases/case law”, very limited, usually only those case decided by the Counsel of Grand Justices.

Taiwan courthouse trivia of the evening:
Can you take notes with a paper and pencil in a Taiwanese courtroom ?
Correct answer–no.
But the dipshit rules do allow the fucking pieces of garbage that make up Taiwanese media to run like deranged chimps through the courthouse running over children and the elderly.

Taiwanese rule making at its finest.

yours in an ir-rational world,
Brian

6

Brian, thanks for the description. Most of the sentencing factors you list seem fairly reasonable (there’s always a fair amount of subjectivity and uncertainty in the law; it’s not and can’t possibly be an exact science). But I didn’t see prior offenses on your list. Did I miss something?

[quote=“brianlkennedy”]As to the database open to the public—not that I am aware of. Case files in Taiwan are not “public records” like they are in California.

As to “reported cases/case law”, very limited, usually only those case decided by the Counsel of Grand Justices.[/quote]

And even those are only in Chinese and very poorly organized and difficult to research, I have discovered, which makes it very difficult to advise clients on the state of hte law in Taiwan or the likely outcome of a case. But of course, in Taiwan and many other countries such prior opinions are not legally binding and subsequent courts have no obligation to follow past precedent. Totally bizarre if you ask me.

[quote]Taiwan courthouse trivia of the evening:
Can you take notes with a paper and pencil in a Taiwanese courtroom ?
Correct answer–no.[/quote]

:noway:

I still haven’t had the pleasure of sitting in the back of a Taiwan courtroom to witness the proceedings. Is that allowed? Is there a particular courtroom/time that you would recommend?

7

I went to a murder trial once. Reminded me of traffic court back home. The defendant was brought out in his underwear, fresh from jail. And he didn’t have a lawyer, since’d he’d confessed (also in jail) and therefore didn’t need one. He was executed, when I suspect a fairer sentence would have been life at the funny farm.

8

I find this one the most interesting. From what I’ve been reading lately, “reflection” plays a big part in the public view. This has been cropping up a lot lately, the President should reflect, the DPP should reflect.

I wonder how this is measured? Does one walk around with their head hung talking into their chest and say sorry alot and if they look remorseful enough they get a lighter sentence?

I’d be interested to hear feedback on this one.

Regards
Michael

9

It’s my understanding that is very much an issue in the US as well. One often hears comments about a strict sentence being handed out or parole being denied because the offender showed no remorse and/or didn’t assist in gathering evidence or testifying against others or locating the dead bodies, etc.

I feel it’s perfectly reasonable to consider post-arrest attitude as one of the factors when making such determinations. True, some people may fake remorse. But others may genuinely recognize that what they did was wrong, it hurt others, and feel very badly about what they’ve done. Yet another category will not even try to admit fault, regret or remorse after the evidence has overwhelmingly demonstrated that they’re guilty.

Shouldn’t that matter, as one of the factors to consider? If a person really genuinely does feel guilty, regretful, remorseful and apologetic and makes best efforts to do something to rectify the situation, shouldn’t he be treated differently than the one who says, “fuck you, I killed your daughter and she deserved it” or whatever? I’m not saying it should be the only factor, but just one of many. Wouldn’t you agree?

10

I, for one, definitely agree and can confirm from personal experience that “remorse” is one of many considerations used in the sentencing of convicted persons in Australia.

11

Mother T.,
You asked about prior record and its effect on Taiwanese sentencing; you did not miss anything, I forgot to include that section. It is:

“Article 47
A person who, within five years after having served a sentence of fixed-term imprisonment or having been remitted after serving part of the sentence, intentionally commits an offense that carries a sentence to more than fixed-term imprisonment is a recidivist and the principal punishment shall be increased up to one half.”

In essence what it is, is an enhancement that says if you got a prior felony within 5 years you can get half again as much (i.e. if you could have got 10 years but have a prior, now you can get 15 years).

In the real world of Taiwanese sentencing, this article matters little because most judges give very light sentences anyway. They rarely come close to maxing people out so the half again provision is rarely used.

As to the ten items mentioned in Article 57, I asked around this week at various courthouses and it looks like items 4, 5 and 8 are seldom used. The two key factors, and almost everyone I spoke to agreed on this, were items 10 and 1.

I have long and vocally criticized the use of item 10, The offender’s attitude after committing the offense, and here is why. In Taiwan there is no separate sentencing hearing after the verdict. The verdict and the sentence are combined.

As a result the defense is put in an impossible position. For example if I am the defense attorney I have to decide at the beginning of the case, before I have seen the prosecution witnesses “live and in person”, what the defense is going to be. Is it going to be
I did not do it
or
I did it and I am sorry, sorry, sorry boo hoo.

If I chose the latter then I have not put the prosecution to the test of its proof and I have basically convicted my own client. If we do the former, i.e. stick with the “I did not do it story”, then if the defendant is found not guilty we are fine, but—if he is found guilty then he gets fucking hammered for not doing the contrite shuck and jive I am so sorry dance during the trial.

In California the sentencing hearing is separate, usually with a completely different judge. So what you do as a public defender is stand on your constitutional right to a trial, and claim at trial you were not there or some other dude did it or something along those lines. If you then got convicted (which was the norm for my clients, one time I went 19 consecutive trial losses as a public defender, almost broke the record of 23 for our office!) you can switch gears and go into the “oh, I am so sorry shuck and jive”.

Okay then, that is a bit about all that.
Happy Holidays,
Brian

12

This sure sounds like a glaring problem that should be fixed. Good job for trying. Why are things allowed to remain this way? Doesn’t anybody in this country actually care about justice?

As you describe things, it is an obvious violation of the right against self-incrimination. An innocent person, who found himself by unlucky chance appearing guilty of a crime he didn’t commit (perhaps set up) would unfairly be put in the position where his best option appears to be disingenuously incriminating himself. By encouraging the accused to throw the defense in order to focus on reducing the sentence, the court is depriving him of a fair trial.

How much of the general public is aware of this problem?

13

Excellent summary Brian. It answered some nagging querries I’ve had for a while now about the back end of the judicial system.

But I wonder how much of what you’re describing is a result of: (a) the fact Taiwan is a civil law jurisdiction, and (b) the fact that 14-year-olds can and do become judges almost straight after completing their wasteoftime degrees from Taida?

I’m no expert on comparative law, but as I understand it, case precedent kind of goes out the window in civil law jurisdictions like France - the judge is assumed to be following a set of rules set in stone by the legislative branch. No need under these circumstances for Judge X to worry about what prison sentence Judge Y gave some crack whore from Banciao for thieving a scooter.

A friend of a friend is married to a judge in northern Taipei who is all of about 35, and got there by sitting a series of “exams” - seniority and peer review played only a minor part in her advancement as far as I can tell. That fits with your “bureaucrat” observation, but could also fit with an interpretation that emphasizes generational change (older judges dying off en-mass) or political development (the place is a democracy now and more judges are needed).

Again, it might also be something to do with the systemic nature of the judicial system - perhaps judges are young and stupid in France as well.

Anyway, I’ll finish with a passing note on “fanxing” (self-reflection). This is a brilliant topic for research on culture and politics as per your earlier thread Brian. I can see the article title now: “Winners grin, losers reflect: coping with electoral defeat in Taiwan.” There’d be a market for that…