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:
- The motive and purpose of the offense
- 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)
- The means used for the commission of the offense
- The offender’s living condition
- The disposition of the offender
- Education and intelligence of the offender
- Relationship between the offender and victim of the offense
- The degree of violation of obligations by the offender
- The danger and damage caused by the offense
- 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