„МАТЕМАТИЗОВАЊЕ“ ОДМЕРАВАЊА КАЗНЕ: ЕФИКАСАН МЕТОД ЗА УЈЕДНАЧАВАЊЕ СУДСКЕ КАЗНЕНЕ ПОЛИТИКЕ ИЛИ НЕУСПЕЛИ ЕКСПЕРИМЕНТ?
MATHEMATICAL SENTENCING MODEL IN CRIMINAL JUSTICE: AN EFFECTIVE METHOD FOR STANDARDIZING THE JUDICIAL PENAL POLICY OR AN UNSUCCESSFUL EXPERIMENT?

Summary/Abstract: The basic postulates of the sentencing framework as we know it today were first established in the 19th century French criminal law, by introducing a system of relatively fixed penalties (a flexible range of minimum and maximum penalties instead of fixed penalties) and the institute of mitigating and aggravating circumstances. This approach has been preserved until the present day because it serves as a sort of balance or compromise between different requirements imposed on criminal law; first, it entails lex certa stemming from the principle of legality as the basic criminal law principle; second, it entails the principle of individualization, which implies the discretionary judicial authority to assess all relevant facts and adjust the imposed sentence (punishment) to the specific circumstances of a particular case, which is the presumption for exercising immediate special prevention and accomplishing other indirect penal policy objectives. However, the system of relatively fixed penalties is often put into effect by means of a fairly broad penal framework, envisaged in a separate part of the Criminal Code, whose interpretation may result in sentencing disparity. The negative consequences of uneven criminal justice policy are by no means harmless and they may have far-reaching effects, particularly considering that sentencing disparity has the capacity to diminish citizens’ confidence in the legal order and the judicial system. In order to resolve the problem of sentencing disparity, some countries has resorted to the so-called “numerical sentencing guidelines”, where the mitigating and aggravating circumstances are not subject to the discretionary judicial assessment. Instead, such circumstances have been assessed in advance and assigned certain numerical values; thus, a simple mathematical calculation of the assigned numerical values indicates the degree of severity of the committed crime and the type of sentence to be imposed in the specific case. This “mathematical” sentencing system was first applied in the US in the 1980s, but it has not had any followers until the recent reforms in Macedonian legislation. The focal point of research in this paper is the normative framework of this sentencing system in the US law and in Macedonian legislation, how it is applied in judicial practice, as well as the immediate consequences and ultimate effects of its application.

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