Law - Essay Example

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Proportionality is used as a principle of law to indicate the fact that any punishment that is handed over to an offender, should be well in proportion to the offence that that individual has committed (Turner, 199). …
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Law Law Proportionality is used as a principle of law to indicate the fact that any punishment that is handed over to an offender, should be well in proportion to the offence that that individual has committed (Turner, 199). Thus, the punishment that an offender receives should be directly related to the severity of the offence committed. To decide whether any offence committed by an individual is proportional to the punishment that is given, then, three aspects of the offence and the punishment must be put into consideration. There should be a comparison between the nature of the offence given and the degree of how harsh the offence committed is (Lamb, 203). The punishment offered should be compared to the other punishments that have been handed previously to other offenders who have committed an offence of similar nature and magnitude. In this case, there should be a consideration as to whether other bigger crimes are subjected to the same magnitude of crime, or to a lower punishment. If bigger crimes have been awarded lower punishment, as compared to the offence committed by the offender, then the punishment is regarded as lacking proportionality (Turner, 211). However, under the international law, proportionality is applied to mean that the damage or harm caused to the civilians or their property in a military attack should not be excessive, and should tally with the military advantage anticipated. If any attack cause more harm to the civilians, more than is acceptable as per the anticipated military advantage, then the attack is observed to lack proportionality (Shamash, 20). Death penalty is a controversial issue in law, where there has been a long-term argument that it should be completely abolished as a form of punishment for any sought of offence or crime. Though still administered to the offenders committing crimes, which are so dire and severe, there are some exemptions. However, the exemptions differ from a country to another, based on their laws and legal principles. However, some exemptions are majorly common. There are circumstances under which some groups are exempted from a death penalty. The first of these groups are the severely mentally ill or severely mentally retarded individuals (Shamash, 23). This group is exempted from a death penalty, because any act of crime they commit may not be fully intended, but rather could be a consequence of their mental illnesses. Another group exempted from the death penalty is the juveniles or the minors who are below the age of 18 years (Turner, 234). Since the laws requires that less legal weight should be granted to an offence committed by an individual who is aged 18 years and below, as compared to the same crime being committed by an adult, then, the juveniles should be exempted from death penalties. Women who are pregnant during the time they commit a crime are exempted from a death penalty, until they have given birth to the child (Lamb, 217). The sixth amendment of the United States constitution provides the defendants with various rights, which serve to ensure that the defendants undergoes a free and fair trial, making the verdict offered based on the offences committed be acceptable even to the offenders themselves. This way, the amendment provides that the offenders shall have a right to a speedy trial, under an impartial jury with a right to an access to defense counsel (Turner, 256). Additionally, the provisions of the sixth amendment requires that the verdict or the judgment offered in any case should be based fundamentally on the facts of the offence that the offender admits to, or based on those facts of the offence that are proved beyond reasonable doubt (Lamb, 208). Additionally, the defendant should have witnesses who stand for his case, as well as the right to be informed the cause and the characteristics of the accusations waged against him (Shamash, 25). This amendment affected the sentencing provisions implementing the criminal sentences, through granting the defendants many rights, thus making the prosecution side have a rough time in establishing ground to have the offenders sentenced. This is because; the sentence offered by the jury is based on the facts, which are admitted either by the offender, or that has been proved beyond doubt in a court of law (Lamb, 219). With such advantages, as presenting witnesses in their favor and the right to legal defense and counsel offered to the defendants, then, the nature of sentencing criminals became a more complex issue. The amendments sought to eliminate hearsay in any legal determination and establish facts as the basis for sentencing offenders. Works Cited Lamb, Jonathan. The Muted Rise of the Silent Witness Rule in National Security Litigation. Pepperdine Law Review, 2008. 200-226. Print. Shamash, Esther. How much is Too Much? An Examination of the Principle of Proportionality. Israel Defense Forces Law Review, 2005. 20-26. Print. Turner, Jenia. Judicial Participation in Plea Negotiations: A Comparative View. The American Journal of Comparative Law, 2006. 199–267. Print. Read More
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