Plugging the legal loopholes

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Plugging the legal loopholes

There has been public uproar about the controversy over a contract killer’s luxurious out-of-prison life. The 68-year-old who was convicted was sentenced for life in 2004 but managed to stay out of prison for more than 4 years over the last 7-year period. To our surprise, it turned out that she stayed in the VIP room at a general hospital and made several unsupervised leaves. She allegedly submitted 12 medical certificates on more than 10 different fatal diseases, including the Parkinson’s disease, in order to extend her suspension period.

Clearly, Suspension of Execution of Sentence (SES) did not stem from the U.S. legal system since there is no equivalent which authorizes the prosecutors to determine whether a certain inmate should be temporarily released for medical reasons. As of 2009, the U.S. federal government and 36 state governments have adopted an alternative called “Compassionate Release,” which authorizes a sentencing judge to determine an inmate’s early release for terminal illness. Unlike parole, it is not based on a prisoner’s behavior, but on medical or humanitarian changes in his/her situation. An inmate may file a petition for Compassionate Release with the warden, provided that “there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.”

If not the U.S., where did it come from? The current SES provisions appear to originate from the Japanese Criminal Procedure Act since there are still striking similarities between the two. The Korean Criminal Procedure Act (KCPA) was first introduced in 1954 right after the cease-fire of the 1950-53 Korean War and there has not been a substantial change on the SES provisions since then. Under the KCPA, the chief prosecutor is in charge of SES matters whereas the prosecutors, including one who actually litigated the criminal case in question, may direct the procedure. The crux of the SES provisions is that the chief prosecutor has the “final say” in the matter.

The question lies in how we can prevent the recurrence of similar problems in the future. Perhaps we can adopt some aspects of the U.S. Compassionate Release system which grants power of the “final say” to sentencing judges rather than the prosecutors. In doing so, we can systematically prevent prosecutorial misuse or abuse under the idea of “checks and balances” in the process of sentence execution.

*An Junseong Adjunct Professor at Kyunghee University & Attorney-at-Law

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