The criminal judge's authority in determining the penalty: An analytical study in light of modern trends and alternatives to custodial penalties

Abstract

This paper addresses the topic of the discretionary power of the criminal judge in sentencing and alternatives to incarceration, through a legal comparative study and critical analysis of its practical applications within Libyan legislation compared to international legal systems. The study begins by clarifying the concept of judicial discretion and its jurisprudential and legal foundations, highlighting that this authority serves as a crucial tool to achieve individualized justice by granting the judge the freedom to choose the type and extent of the penalty within legal limits, while emphasizing that this discretion is not absolute but bounded by legal, ethical, and judicial oversight constraints. The paper then reviews the development of alternative penalties, which have emerged as reformative options particularly for short-term imprisonment. It outlines their main objectives, including reducing prison overcrowding, mitigating the negative effects of incarceration, and enhancing the social reintegration of convicts. Legislatively, the study shows that Libyan law includes some alternatives such as fines, suspension of sentence execution, and parole, yet these remain limited compared to modern legislations in countries like France, Morocco, and Canada, which have expanded alternatives to include community service, house arrest, and rehabilitation programs. The research also discusses the challenges faced by judges in exercising their discretionary power, such as the lack of social and psychological reports, media and public pressure, limited alternatives, and the absence of effective monitoring mechanisms. The paper includes judicial examples from Libya and abroad to demonstrate how discretion and alternative penalties are applied in practice, enhancing the applied aspect and illustrating differences and similarities between judicial systems. In conclusion, the paper offers legislative, judicial, and institutional recommendations aimed at expanding the scope of alternative penalties, unifying sentencing standards, and strengthening institutional support for judges. It stresses the importance of balancing legal rigor with judicial flexibility to ensure effective justice.