Is Shatter’s early prisoner release plan constitutionally sound?

Atlantis50

His plan could see prisoners with sentences of up to 8 years released having served as little as 50% of their sentences. If the Government and Minister of Justice can enact a policy that releases prisoners so early into their sentence then surely this interferes with the judiciary and hence the separation of powers as prescribed in the constitution:

[FONT=Verdana, Helvetica]The Separation of Powers[/FONT]


[FONT=Verdana, Helvetica]The Constitution provides for a tripartite separation of powers: the Legislature, the Executive and the Judiciary. This ensures that no one organ of State may interfere with the functions ascribed to the other two. Articles 12 to 14 set out the functions of the President of Ireland, who is the Head of State. The powers vested in the President are largely ceremonial although several discretionary powers are also provided for under the terms of the Constitution. Notwithstanding the separation of powers the Courts exercise a[/FONT] [FONT=Verdana, Helvetica]constitutional function in reviewing the constitutionality and legality of actions of the other organs of State.[/FONT]


[FONT=Verdana, Helvetica](i) The Legislature[/FONT]
[FONT=Verdana, Helvetica] As mandated by the Constitution, the Oireachtas consists of a bicameral chamber and the President of Ireland. The two Houses of the Oireachtas are Seanad Éireann (the Senate) and Dáil Éireann (the chamber of deputies). While Article 15 of the Constitution vests sole law-making power in the Oireachtas, this power is not unfettered as the Oireachtas is precluded from enacting legislation that is repugnant to the terms of the Constitution. Legislation that retrospectively creates an offence or which would provide for the imposition of the death penalty is similarly forbidden. Legislation may be initiated in either of the two Houses, with the exception of Money Bills and Bills to amend the Constitution which may only be introduced in Dáil Éireann. A Bill goes through various stages in both Houses before being sent to the President of Ireland for her signature, whereupon the Bill becomes an Act of the Oireachtas.[/FONT]


[FONT=Verdana, Helvetica](ii) The Executive[/FONT]
[FONT=Verdana, Helvetica] The Executive is the Government of Ireland and is provided for in Article 28 of the Constitution, which stipulates that the Government must consist of no fewer than 7, and no more than 15 members and includes the Taoiseach (Prime Minister) who is the head of the Executive and his next-in-command, the Tánaiste (Deputy Prime Minister).[/FONT]


[FONT=Verdana, Helvetica](iii) The Judiciary[/FONT]
[FONT=Verdana, Helvetica] Articles 34 to 38 of the Constitution provide for the system of courts in Ireland and the trial of offences. Article 34 expressly states that "Justice shall be administered in courts established by law by Judges appointed in the manner provided by this Constitution". Provision is made in Article 35 for the appointment and tenure of members of the Irish judiciary, who, under the terms of the Article "shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Under Article 35.4.4 of the Constitution, the members of the Supreme Court and the High Court can be removed from office solely by a resolution of both Houses of the Oireachtas for stated misbehaviour or incapacity. The tenure of Circuit and District Judges is similarly protected by statute. In addition, under Article 35.4.5 of the Constitution the remuneration of a judge cannot be reduced during his or her term of office.[/FONT]

http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/0/D5F78352A387D74480257315005A419E?opendocument&l=en

Opinions?

Procrastastudy

Presumably its going to be done under some sort of legislative framework.

Atlantis50

GCDLawstudent wrote: »

Presumably its going to be done under some sort of legislative framework.

Obviously, but even so it could still be unconstitutional.

The legislation interferes with judiciaries role of imposing sentences by dramatically curtailing such sentences.

Atlantis50

Atlantis50 wrote: »

Obviously, but even so it could still be unconstitutional.

The legislation interferes with judiciaries role of imposing sentences by dramatically curtailing such sentences.

You should probably read the actual text of Art. 13.6 of the Constitution before making this argument

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities

Atlantis50

Deleted User wrote: »

You should probably read the actual text of Art. 13.6 of the Constitution before making this argument

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities

Thanks for pointing that out. I still think Shatter is going too far with this. At what point would commutation or remission interfere with the judiciaries role - that clause seems far too open to me. For instance, they could enact a policy saying prisoners get 90% off their sentences and that would be constitutionally sound but clearly interferes with the administration of justice.

Procrastastudy

Is simply the reverse of mandatory minimums isn't it? (As stupid as that concept is.)

Atlantis50

Atlantis50 wrote: »

Thanks for pointing that out. I still think Shatter is going too far with this. At what point would commutation or remission interfere with the judiciaries role - that clause seems far too open to me. For instance, they could enact a policy saying prisoners get 90% off their sentences and that would be constitutionally sound but clearly interferes with the administration of justice.

The legislature determine sentences for many crimes anyway within a certain limitation. They set the limits such as "a fine not exceeding x or a prison sentence not exceeding y". That's not unconstitutional. In fact it's precisely what the legislature is there to do. The judiciary have the power to remove your liberty or, in certain circumstances, to restore it. The President traditionally has the power of remission and this can be conferred by law on another authority. How can that be unconstitutional?

chopser

While I understand the reasoning behind it, this could very quickly become career suicide for Shatter.

What happens when one or more of the prisoners who are released early end up raping/murdering someone else or even some lesser act such as torturing a cute puppy that purchased the Daily Mail on a regular basis.

Can you imagine the public outcry?

Procrastastudy

Ballsy move imo - I'd vote for him... if I voted

Its fairly clear the prison system can't go on the way it is. Why they haven't brought in legislation to garnish social welfare / wages and pay fines by instalments baffles me though.

A puppy would have more intelligence than to buy a copy of the Daily Mail :P

Victor

People sentenced are not necessarily the same people who will commit crimes again.

Removing people from prison who don't need to be there frees up space for people who do need to be.