Sentencing Below the Minimum Criminal Penalty: An Analysis of Judicial Decisions on Drug Offenders

Nasrullah Nasrullah 1

https://doi.org/10.62271/pjc.16.4.797.807

Abstract

This research dissects the phenomenon of judicial sentencing disparities, particularly sentences below the minimum criminal penalty for drug offenders. It reveals that these disparities are influenced by various factors, including the application of restorative justice, judicial discretion, the accused’s role, and the type and quantity of narcotics, using a normative legal approach and qualitative content analysis of court decisions. Such disparities create legal uncertainty, diminish deterrence, and can hinder efforts to combat the illicit narcotics trade. The research recommends enhancing judges’ understanding of punishment goals and restorative justice, improving the Public Prosecutor’s thoroughness in indictments, developing clearer sentencing guidelines, strengthening rehabilitation capacity, and intensifying prevention efforts. It also proposes amending Law Number 35 of 2009 to mandate indictment under Article 127 when the accused tests positive for drug use, fostering a more rehabilitative approach and reducing potential sentencing disparities due to varying legal interpretations.

Keywords: Drug Offenders; Judicial Discretion; Minimum Criminal Penalty; Restorative Justice; Sentencing Disparity.