의무적 양형제도에 관한 고찰

A Study on the Mandatory Sentencing

Many Western nations including US, UK, Canada and Australia have passed mandatory sentencing laws that removes and greatly curtails judicial discretion in sentencing. Although the concept of mandatory sentencing is not familiar to Korean scholars, Korea also has passed several laws which diminish judicial discretion in sentencing. Mandatory sentencing schemes have been established in response to a demand for strict and certain measures to control crimes. By providing for certain incarceration with no potential for early release, mandatory is an effective means to control crimes. However, a mandatory minimum sentence may not actually result in firm and consistent sentencing as intended, and may have incidental implications. Mandatory sentencing is generally inconsistent with the fundamental principle that a sentence must be proportionate to the seriousness of the offense and the degree of blameworthiness of the offender. Lengthier incarceration due to mandatory sentencing results in increased prison costs not necessarily offset by any reduction in crime rates. There is also an opportunity cost, because fewer public funds are available for law enforcement and crime prevention initiatives. Furthermore, mandatory sentencing appears to have arisen as a means by which politicians can attract electoral support by showing that they are tough on crimes. A sentence must be proportionate to the crimes. Curtailing judicial discretion cannot be an effective measure to control crimes. Early intervention and crime prevention initiatives should be emphasized as an effective means to control crimes. Western countries’ mandatory sentencing schemes are outmoded, and it cannot be a model for legislation in Korea.