Judicial discretion and the minimum statutory sentence for migrant smuggling through Indonesia

Research output: Contribution to journalArticleResearchpeer-review

Abstract

The general, but false, perception of migrant smuggling through Indonesia, a large, archipelagic country, is that smugglers operate entirely on their own. In fact, the more complex smuggling operations rely on broad networks of foreign organizers as well as local intermediaries and ground staff. In 2011, the Indonesian legislature introduced a severe minimum sentence for any involvement in migrant smuggling with the expectation that the judiciary would apply the sentence in all future cases. However, some judges proceeded to hand down sentences below the statutory minimum, arguing that the punishment is not commensurate to the relatively minor roles played by locals. This article examines how judges at all levels of the judiciary did so in ten related cases. In conclusion, it argues that statutory sentences are not mandatory in Indonesia and that, by applying below-minimum sentences, judges not only maintain judicial independence; they also effectively exercise a judicial review function.

Original languageEnglish
Pages (from-to)413-431
Number of pages19
JournalAsian Journal of Law and Society
Volume5
Issue number2
DOIs
Publication statusPublished - 1 Nov 2018

Keywords

  • criminal justice system
  • Indonesia
  • migrant smuggling
  • minimum sentence
  • transnational organized crime

Cite this

@article{e71149c1a4df4c31b3e3afc8848bd203,
title = "Judicial discretion and the minimum statutory sentence for migrant smuggling through Indonesia",
abstract = "The general, but false, perception of migrant smuggling through Indonesia, a large, archipelagic country, is that smugglers operate entirely on their own. In fact, the more complex smuggling operations rely on broad networks of foreign organizers as well as local intermediaries and ground staff. In 2011, the Indonesian legislature introduced a severe minimum sentence for any involvement in migrant smuggling with the expectation that the judiciary would apply the sentence in all future cases. However, some judges proceeded to hand down sentences below the statutory minimum, arguing that the punishment is not commensurate to the relatively minor roles played by locals. This article examines how judges at all levels of the judiciary did so in ten related cases. In conclusion, it argues that statutory sentences are not mandatory in Indonesia and that, by applying below-minimum sentences, judges not only maintain judicial independence; they also effectively exercise a judicial review function.",
keywords = "criminal justice system, Indonesia, migrant smuggling, minimum sentence, transnational organized crime",
author = "Wayne Palmer and Antje Missbach",
year = "2018",
month = "11",
day = "1",
doi = "10.1017/als.2018.7",
language = "English",
volume = "5",
pages = "413--431",
journal = "Asian Journal of Law and Society",
issn = "2052-9015",
publisher = "Cambridge University Press",
number = "2",

}

Judicial discretion and the minimum statutory sentence for migrant smuggling through Indonesia. / Palmer, Wayne; Missbach, Antje.

In: Asian Journal of Law and Society, Vol. 5, No. 2, 01.11.2018, p. 413-431.

Research output: Contribution to journalArticleResearchpeer-review

TY - JOUR

T1 - Judicial discretion and the minimum statutory sentence for migrant smuggling through Indonesia

AU - Palmer, Wayne

AU - Missbach, Antje

PY - 2018/11/1

Y1 - 2018/11/1

N2 - The general, but false, perception of migrant smuggling through Indonesia, a large, archipelagic country, is that smugglers operate entirely on their own. In fact, the more complex smuggling operations rely on broad networks of foreign organizers as well as local intermediaries and ground staff. In 2011, the Indonesian legislature introduced a severe minimum sentence for any involvement in migrant smuggling with the expectation that the judiciary would apply the sentence in all future cases. However, some judges proceeded to hand down sentences below the statutory minimum, arguing that the punishment is not commensurate to the relatively minor roles played by locals. This article examines how judges at all levels of the judiciary did so in ten related cases. In conclusion, it argues that statutory sentences are not mandatory in Indonesia and that, by applying below-minimum sentences, judges not only maintain judicial independence; they also effectively exercise a judicial review function.

AB - The general, but false, perception of migrant smuggling through Indonesia, a large, archipelagic country, is that smugglers operate entirely on their own. In fact, the more complex smuggling operations rely on broad networks of foreign organizers as well as local intermediaries and ground staff. In 2011, the Indonesian legislature introduced a severe minimum sentence for any involvement in migrant smuggling with the expectation that the judiciary would apply the sentence in all future cases. However, some judges proceeded to hand down sentences below the statutory minimum, arguing that the punishment is not commensurate to the relatively minor roles played by locals. This article examines how judges at all levels of the judiciary did so in ten related cases. In conclusion, it argues that statutory sentences are not mandatory in Indonesia and that, by applying below-minimum sentences, judges not only maintain judicial independence; they also effectively exercise a judicial review function.

KW - criminal justice system

KW - Indonesia

KW - migrant smuggling

KW - minimum sentence

KW - transnational organized crime

UR - http://www.scopus.com/inward/record.url?scp=85061097012&partnerID=8YFLogxK

U2 - 10.1017/als.2018.7

DO - 10.1017/als.2018.7

M3 - Article

VL - 5

SP - 413

EP - 431

JO - Asian Journal of Law and Society

JF - Asian Journal of Law and Society

SN - 2052-9015

IS - 2

ER -