Criminological foundations of penology and concepts punishment

Transcription

1 Criminological foundations of penology and concepts punishment

2 Basic concepts of crime and human nature Classical criminology; Positivist criminology; Critical and radical criminology; Neoclassical criminology; 2

3 Classical criminology 3

4 Basic assumptions about human nature and crime 1. Indeterminist concept of human nature: human beings have free will to choose; this includes making choices between good and evil, lawful and criminal behaviour; 2. Hedonistic concept of human nature: human beings tend to seek pleasure, and to avoid pain; 3. Rational and utilitarian concept of human nature: human behaviour is guided by considerations of usefulness, purposefulness, and reasonableness; 4

5 Basic assumptions about human nature and punishment 4. Pessimistic view of human nature: everyone is capable of committing a crime; every human being is a potential criminal; therefore punishment is an indispensable instrument to protect the existence and continuity of human society; as everyone is a potential criminal, punishment is addressed to every member of society, and is supposed to influence everyone s behaviour; 5

6 Basic assumptions about just punishment Roots in the theory of social contract state of nature: due to the evil nature of man people are fighting each other: the war of all against the all (bellum omnium contra omnes Thomas Hobbes); man is a wolf to [his fellow] man (homo homini lupus est); to end this people decided to enter social contract; penal law and punishment constitute essential elements of that social contract, guarantee its survival; 6

7 Just and proportional punishment Consequences for the theory of punishment offender who commits an offence is in breach of the social contract; by committing an offence offender obtains unjustified, undeserved rewards; by the means of punishment he/she should be deprived of such rewards; 7

8 Just and proportional punishment Consequences for the theory of punishment punishment is supposed to neutralise undeserved, unearned rewards resulting from an offence; it constitutes restitution of the proper balance, equilibrium between rights and duties guaranteed under the social contract, and disturbed by an unlawful act; offence oriented criminal law (Tatstrafrecht): punishment must fit the crime. 8

9 Punishment must fit the crime crime (A) and (just) punishment (~A) (-10) + 10 = 0 9

10 Just and proportional punishment Consequences for the theory of punishment every crime should be met with punishment involving pain to the offender to the extent that offender inflicted damage, pain on others or on the society punishment should be always proportional to the offence; proportional punishment is just punishment; 10

11 Immanuel Kant ( ) Metaphysic of Morals (Methaphysik der Sitten),

12 Absolute concepts of just punishment Immanuel Kant and absolute concept of punishment retribution is purpose in itself, and does not require any justification; in that sense punishment serves no concrete, worldly purposes; example with island (Insel Beispiel); but in fact it constitutes means to uphold moral order; 12

13 Cesare Beccaria ( ) On crimes and punishments (Dei delitti e delle pene),

14 Beccaria s monument in Milan 14

15 Retributive concept of just punishment Cesare Beccaria and retributive concept of punishment retribution guarantees existence of social order, it upholds social contract; in that sense punishment serves also certain concrete purposes beyond pure retribution; 15

16 Jeremy Bentham ( ) Introduction to Principles of Morals and Legislation,

17 Jeremy Bentham s auto-icon 17

18 Deterrent function of just punishment people act in a given way if they consider it useful, purposeful and reasonable; criminal behaviour may be more attractive than lawful one because it usually requires less work for greater payoff; therefore, if left unsanctioned, crime has greater utility than conformity; people avoid behaviour which may bring punishment, because they seek to avoid pain; therefore, pain reduces utility of unlawful behaviour; 18

19 Deterrent function of just punishment punishment should deter crime, i.e. constitute not only just retribution, but also influence future human behaviour; proportional punishment is also deterrent punishment; this means that punishment should serve also very concrete social purposes, beyond retribution; 19

20 Punishment must deter the criminal crime (A) and (deterrent) punishment (~A) gain < cost (-10) + 12 = 2 20

21 Positivist criminology 21

22 Basic assumptions about human nature and crime 1. Determinist concept of man. there is no such thing as free will, and free choice: this is a purely metaphysical, speculative assumption of an absolutely unscientific character; everything in the nature has its causes; human beings are part of the nature; therefore human behaviour, as everything in the nature, is determined/affected by causes, having either internal or external character; 22

23 Basic assumptions about human nature and crime 2. Determinist concept of criminal behaviour if human behaviour in general results from various causes, this applies also to particular forms of behaviour, such as criminal behaviour; the purpose of criminology is to find what causes criminal behaviour; subject of criminology as a branch of science is criminal behaviour and its causes (aetiology of crime); 23

24 Cesare Lombroso ( ) The Criminal Man (L uomo delinquente),

25 Lombroso s monument in Verona 25

26 Basic assumptions about human nature and crime 3. Individualism. if we want to find out what causes criminal behaviour of human beings we have to concentrate our research on human individuals committing offences; subject of criminology as a branch of science is human individual called offender; criminology is a study of individual offender, a criminal man ; 26

27 Basic assumptions about human nature and crime offenders are different from other human beings; offenders have particular features which constitute causes of their behaviour; if criminology finds out what constitutes this difference, what are these features we will find causes of crime, and will be able to explain criminal behaviour; 27

28 Basic assumptions about human nature and punishment offenders constitute a special (rather small) minority of all men; punishment is something addressed to this minority, and supposed to influence behaviour of its members, not to all members of society; optimistic concept of human nature: most men do not have any propensity to commit crimes; 28

29 The concept of corrective punishment 4. Correctionalism. scientific explanation of criminal behaviour is not purpose in itself: it should make possible preventing crime; if offenders are somehow different than other people and we know what this difference consists of, we can try to correct them, to make them normal : medical analogy: diagnosis: finding causes of the difference ( disease ); treatment: making offender to normal person ( healing ); the idea of rehabilitation of offenders; 29

30 Rehabilitative concept of punishment punishment should change offenders, make them to normal, law abiding citizens, i.e. serve preventive purposes; preventing future law-breaking should be achieved primarily by rehabilitation of offenders; sentencing process must involve primarily considerations regarding particular characteristics and needs of an offender; offender oriented penal law (Täterstrafrecht): punishment must fit the offender. 30

31 Punishment must fit the offender crime (A) and (corrective) punishment (B) 31

32 New approach to penal law Two basic concepts of sentencing Determinate sentencing corresponds to retributive concept of punishment, proportionality of sanction to the offence; by the classical school considered to constitute the essence of just punishment; Indeterminate sentencing corresponds to purposeful, preventive concept of punishment, proportionality of sanction to the offender and his/her individual needs; by the positive school considered to constitute the essence of preventive punishment; 32

33 Franz von Liszt ( ) Purposeful thinking in penal law (Der Zweckgedanke im Strafrecht),

34 Not only rehabilitation Correction should not be the only purpose of punishment, as there are at least three different types of offenders: offenders who can be corrected, changed: they should be rehabilitated (Besserung); occasional offenders: they should be deterred (Abschreckung); incorrigible offenders: they should be incapacitated (Unschädlichmachung); 34

35 New measures in penal law Offenders who can be changed, rehabilitated such offenders should be rehabilitated; sentencing and implementation of a sentence should serve primarily the interests of rehabilitation, independently of retributive purposes; implementation of a sentence should depend primarily on the progress of correction, rehabilitation; suspended sentence and probation (Europe) conditional release, parole (Europe); indeterminate sentencing justified by rehabilitative needs (USA); 35

36 New measures in penal law Offenders who can be changed, rehabilitated implementation of a sentence, foremost imprisonment sentence, should be devoted primarily to treatment of a convict; treatment should be intended to change a convict, make him/her to a law-abiding citizen; It was supposed to provide: Education; Professional skills; Treatment of dependencies (alcohol, drugs etc.) Treatment of psychiatric, psychological and behavioural problems; Etc. 36

37 New measures in penal law Offenders who cannot be rehabilitated (incorrigible offenders) such offenders are to be incapacitated: dangerous offenders; habitual offenders; society has the right to defend itself against such offenders: they may be kept detained even indefinitely; the link between offence and punishment disapperas and disproportionate sentences are justified; sentences based not on social danger of an act, but on social danger of an offender; 37

38 New measures in penal law How to adopt penal law to this preventive thinking? the concept of purely prevention oriented punishment imposed and implemented exclusively under consideration of the need to protect society against offender (it disregards completely the problem of proportionality); the concept of special, prevention oriented security measures (mesures de sûreté, misure di sicurezza, Sicherungsmassregeln); special measures separate from punishment imposed and implemented exclusively under consideration of the need to protect society against offender; 38

39 New measures in penal law Franz Von Liszt the concept of punishment serving only or primarily preventive tasks; it accepts the possibility of imposing punishment disproportionate to offence gravity and culpability degree; it is justified by preventive needs; 39

40 Enrico Ferri ( ) Criminal sociology (Sociologia criminale) 1884 Positive school of criminology (La scuola positiva do criminologia),

41 New measures in penal law Draft Italian penal code of 1921 as a base of the 1930 Rocco code; Argentinian penal code of 1921): the notion of punishment to be replaced completely by security measures; security measures of indeterminate character imposed exclusively according to preventive needs justified by the danger posed by the offender; the concept of social defence (defence sociale); the concept of moral responsibility justifying punishment, replaced with the concept of legal responsibility justifying preventive measures; culpability replaced with dangerousness of an offender; 41

42 New measures in penal law Carl Stooss ( ) Draft Swiss penal code of 1893 compromise concept of the so called two track system of criminal sanctions (zweispurigkeit des Strafrechts): punishment: must be somehow proportionate to crime and culpability and therefore of determinate character; security measures: may be of disproportionate character if justified by the needs to protect society and therefore of indeterminate character; 42

43 New measures in penal law Treatment oriented security measures; security measures applicable to insane, alcoholics, drug addicts (persons either not criminally responsible and dangerous, or persons criminally responsible but having special disorders requiring treatment); imposed either instead of punishment (insane), or implemented prior to punishment (alcohol or drugs dependent offenders); 43

44 New measures in penal law Isolation oriented security measures security measures applicable to offenders considered to be dangerous because of the nature of their offences (e.g sexual offenders) or because of the fact that they repeat criminal behaviour. dangerous habitual offenders (gefährliche Gewonheitsverbrecher); work-shy recidivists (arbeitsscheue Rückfällige); security measures implemented after the punishment has been served and having indeterminate character (as long as necessary) 44

45 Summary of classical and positivist concepts of penal law at its extremes Classical approach Mixed approaches Positivist approach Punishment Absolute approach: retribution Justice Punishment or (and) security measures Utilitarian approach: prevention Rehabilitation, deterrence and incapacitation Punishment must be proportionate to a criminal act: it must fit the crime; Offence oriented penal law Punishment or measures must be adjusted to the offender (his dangerousness: punishment must fit offender Offender oriented penal law 45

46 Beyond penal policy Two ways of thinking about causes of crime in positivist criminology individualistic approach (kind of people paradigm): causes of crime are located in the individual. biological and psychological theories of crime; sociological approach (kind of environments paradigm): causes of crime are located in the social environment of an individual; sociological theories of crime; 46

47 Beyond penal policy Consequences of the kind of people paradigm subject to influence is offender, and this may be achieved by penal law, using either punishment (although prevention or rehabilitation oriented, and not purely retributive) or other measures; criminal policy is implemented primarily or even exclusively by the means of criminal law, law enforcement, administration of justice, penal policy; narrow understanding of criminal policy; 47

48 Beyond penal policy Consequences of the kind of environments paradigm subject to influence is rather offender s environment; this can not be achieved by the means of penal law and punishment; criminal policy and its preventive function have to be implemented primarily by the means other than penal law and punishment; criminal policy should be implemented also by various non-punitive instruments of social reform and social policy; broad understanding of criminal policy; 48

49 Social policy as an instrument of crime control Two strategies of crime control destructive: aimed primarily at unwanted, problematic social conditions and phenomena, with the intent to destruct, to remove them; creative: aimed primarily at creating and developing desired, positive social conditions and phenomena with the intent to drive away in that way unwanted, problematic phenomena, or to deprive them of the ground on which they develop; 49

50 Social policy as an instrument of crime control first line of defence: social policy, creation of social conditions preventing law-breaking and stimulating, reinforcing conformity (primary and secondary prevention): main actors: social reformer and social worker; second line of defence: penal policy, penal law but applied not exclusively in a repressive way (tertiary prevention): main actors: policemen, prosecutors, judges, prison officers, probation officers; 50