UDC 34
Nedelkin M.D.
Student, Department of Applied Informatics, Astrakhan State Technical
University, Russian Federation, Astrakhan Tsyganova O.A.
Senior Lecturer, Department of Foreign Languages, Astrakhan
State Technical University, Russian Federation, Astrakhan
ON THE ISSUE OF NON-CUSTODIAL PENALTIES IN ENGLAND AND THE UNITED STATES
Abstract
The article is devoted to the study of the experience of the enforcement of non-custodial sentences in England and the United States of America. It analyses the types of non-custodial penalties available, their objectives and the reasons for their prevalence.
Keywords:
non-custodial sentences; alternative sentences; non-violent crimes; offender; community service; house arrest and electronic monitoring; law-abiding life.
The laws of England and the United States do not clearly define the purpose of punishment, but the analysis of modern English and American legal and sociological literature makes it possible to distinguish the purposes of punishment, such as retribution for a crime, Protection of society, prevention of crime, law enforcement, punishment as correction, etc. Modern American society uses so-called «restorative» justice, which is not primarily aimed at punishment as such, It is for the restoration and compensation of the damage caused.
The English and American legislations emphasize:
1) The death penalty;
2) Custodial sentences;
3) Non-custodial penalties;
4) financial penalties;
5) Penalties for minors.
In modern English legal literature, the punishment is interpreted as «authoritative infliction of suffering on a person for a committed and crime».
According to American jurist J. Hall, the punishment is the result of a breach of the criminal norm, and it is weighed, first of all, against the harm caused by the crime.
The article deals with non-custodial penalties (alternative forms of punishment) as a subject of study of the science of criminal law on the example of the English and American experience.
There is no uniform definition of alternative penalties in the current legislation of the countries under consideration. A common view in science is that alternatives in criminal law are all types of responses to actions prohibited by criminal law that do not involve deprivation of liberty, ». According to M. R. Geta, when considering alternative punishments, it is necessary to understand that the alternatives are not punitive in nature, and they are aimed at achieving the goals of criminal responsibility either without punishment or under conditions of exemption from it».
As a result of the increasing number of offences, foreign States have tightened criminal policy, which has led to an increase in the number of custodial sentences for offenders, as well as an increase in the length of
sentences.
However, this, in turn, has led to an increase in the number of prisoners, overcrowding in prisons and detention facilities, increased relapse, loss of family and social ties and other adverse consequences. As a result, many countries have increasingly adopted alternatives to imprisonment, which certainly contribute to the process of establishing the rule of law and humanizing legislation.
These alternatives will not only strengthen the «stretched» state budget, and also give confidence that the punishment corresponds to the crime. Thus, serious offenders «will not get off» with a suspended sentence, and «unlucky» offenders will not end their days in prison for crimes of small and medium gravity. As a result, there is now widespread use of alternative penalties for minor offences.
One of the purposes of alternative penalties is to return convicts to a law-abiding life. The sentence may consist of one alternative punishment or a combination of two or more correctional programmes.
Some generally accepted alternative punishments in English-speaking countries include community service, release from prison while working (decommissioning), the laundering of graffiti in public places, and antidrug and rehabilitation programmes. The judge may choose and impose one or more such alternative sentences instead of the mandatory statutory term of imprisonment for an offence. All of the above punishments are of an alternative nature and may replace or complement each other. It will depend on the defendant's counsel, who will propose the right combination (combination) of alternative penalties, which the judge or prosecutor will accept as adequate punishment for the accused.
Who has the right to an alternative punishment? Alternative punishments are not available to all. Depending on the circumstances of the case, the accused may or may not claim an alternative to deprivation of liberty. Generally, penalties, without isolation from society, are imposed on those who have committed non-serious and non-violent crimes, have not committed numerous or repeated crimes and do not pose a risk to society.
It must be remembered that the availability of a variety of alternative punishments depends on the laws of a particular state.
Community service is becoming increasingly common in the search for alternatives to custodial sentences. In England, community service is a relatively new form of alternative punishment and was introduced only in 1972. It is generally the provision of free community services. The type of public service is determined by the officer supervising the convicted person. For example, the defendant may be sentenced to work in urban public organizations or to clean and improve the city. Under English law, the penalty may be imposed on a person over 16 years of age for a minimum of 40 and a maximum of 240 hours. Community service may not exceed 12 months, but may be extended.
An alternative sentence of community service may be imposed by a court of law, either independently or on probation.
Electronic monitoring and house arrest are another way to execute sentences, save the state money and allow the convict to work to be a law-abiding and useful citizen. The prisoner's movements are monitored and restricted by an electronic device - an ankle bracelet. This bracelet tracks all actions of the convict: school attendance, work, church and other activities approved by the program administrator. The conditions of this type of punishment include the prohibition to leave a designated place of residence at a certain hour, the determination of the purpose and distance at which the convicted person may travel from home, frequent inspections via a device or by telephone, Daily contact with a probation officer, regular and unannounced drug checks. Violation of these conditions may result in imprisonment and imprisonment.
Electronic monitoring may be ordered by the court or the accused may apply to the court independently with the support of his lawyer.
Another type of electronic device is a car ignition lock for violators convicted for driving a car under the influence of alcohol and drugs.
The placement programme consists of physical ё work performed by the convicted person at the workplace assigned to him, usually at the current workplace. At the end of the working day, convicts return home or to the county prison (county prison). The convicted person must arrive at the place of work until the programme is fully implemented.
The court may sentence the convicted person to serve his sentence in a city or private prison. The convicted person may continue to work and serve his sentence on weekends in private and local prisons. The convict celebrates his arrival at the prison in the afternoon on Friday and is released at the same time on Sunday. Prisons had the right to make certain demands, for example, a prisoner could be asked to pay for a weekend in prison.
Drug courts may sentence a convicted drug user to an alternative form of drug therapy. The substitution of criminal liability with alternative forms of correction and training in special rehabilitation programmes will require the convicted person to carry out health and drug education programmes within a specified period of time. If the convicted person attends all prescribed lectures and performs all programmes, the charge may be dismissed. This rigorous program involves drug testing at random and is successful in treating drug addicts.
Defendants with alcohol dependence may be sentenced to treatment in private medical institutions. Convicts are expected to undergo individual and group therapy along with their daily duties. They have to comply with internal rules and curfews.
Other alternative penalties may involve so-called public reprimand. The principle underlying this type of punishment is quite simple: people do not like to be humiliated, and the prospect of facing social humiliation can serve as a more serious deterrent than harsher punishments such as imprisonment or probation. And from the court's point of view, it is much cheaper to impose such punishment than to keep a person in prison for months and years. However, from the American point of view, if the punishment is sufficiently effective, it raises the question of its conformity with constitutional norms. The Eighth Amendment to the Constitution prohibits the imposition of cruel and unusual punishments.
A public reprimand is imposed for minor offences and includes placing information and photographs of the convicted person on billboards or requiring the convicted person to wear a certain sign or poster containing information about the offence committed.
In the US, offenders are most often sentenced to either imprisonment or routine parole accompanied by superficial supervision. Since the severity of the crimes is unclear, the sentencing judge tends to lean one way or the other. The sentence is either too severe, sentencing to imprisonment for crimes that do not deserve it, or too lenient, giving routine probation to people whose crimes deserve more severe punishment or supervision. The increasing popularity of alternative sentences is due to the fact that the number of prisoners in prisons is decreasing, costs are reduced and crime control is improved. Prisons are overcrowded, in part, because in some states, everyone is sent to prison, from petty crooks caught for the first time to repeat robbers. National statistics show that about half of the offenders sent to prison each year are convicted of crimes against property or public order, i.e., non-violent crimes. While it was necessary to punish those criminals severely, there was no need to impose a custodial sentence.
Legislators hope that appropriately designed alternative penalties can prevent the commission of new crimes, but do so without the cost of imprisonment. These alternatives are tougher than traditional probation, but less stringent and costly than incarceration.
Список использованной литературы:
1. Garland, D.: The culture of control. Oxford, 2003.
2. Hall J. General Principles of Criminal Law. 2nd ed. Indianapolis, 1960.
3. Stern V. Alternatives to Imprisonment in Developing Countries. London, 1999.
4. The New Law Journal. 1987. P. 1027.
5. Гета М. Р. Альтернативы наказанию. Усть-Каменогорск: Медиа- Альянс, 2004.
6. Дворянская И. В., Сергеева В. В., Баталин Д. Е. Применение альтер- нативных видов наказания в Западной Европе, США и России: срав- нительно-правовое исследование. М.: Центр содействия реформе уголовного правосудия Penal Reform International, 2003.
7. Хромых Е. В. Альтернативные лишению свободы уголовные наказа- ния: теория и практика назначения и исполнения: дис. ... канд. юрид. наук. Ростов н/Д., 2005.
© Nedelkin M.D., Tsyganova O.A., 2023
УДК 347.965
Палюлин А.Ю.,
магистрант 1 курса юридического факультета Научный руководитель: Кубиевич С.В.
Университет «Синергия», Москва, РФ
ПРЕДЕЛЫ ДЕЙСТВИЯ АДВОКАТСКОЙ ТАЙНЫ Аннотация
Настоящая работа посвящена наиболее острым проблемам в правовом регулировании и правопонимании такого понятия в отечественной адвокатуре, как адвокатская тайна. В статье рассматриваются случаи, когда адвокат должен отступить от принципа сохранения адвокатской тайны в интересах своего доверителя и в интересах общества в целом. Предложены пути совершенствования законодательства в сфере адвокатской тайны.
Ключевые слова:
адвокаты, адвокатура, охраняемая законом тайна, адвокатская тайна, информация, конфиденциальная информация, разглашение сведений.
Палюлин А.Ю.,
1st year Master's student of the Faculty of Law Scientific adviser: Kubievich S.V.
Synergy University, Moscow, RF
LIMITS OF ATTORNEY-CLIENT PRIVILEGE Abstract
This work is devoted to the most acute problems in legal regulation and legal understanding of such a concept in the domestic legal profession as attorney-client privilege. The article deals with cases when a lawyer must deviate from the principle of maintaining attorney-client secrecy in the interests of his client and in the interests of society as a whole. The ways of improving the legislation in the field of attorney-client privilege are proposed.
Keywords:
lawyers, advocacy, legally protected secret, lawyer's secret, information, confidential information, disclosure of information.