Security as a goal of criminal justice

Security as a goal of criminal justice FACULTY OF LAW. UNIVERSITY OF FREIBURG/SWITZERLAND Chair of Criminal Law and the Philosophy of Law Asian Criminological Society s 4th annual conference 20-22 August 2012 Seoul/Korea Prof. Dr. M. A. Niggli I. Time perspectives... 2 II. Theory of punishment... 4 a. Absolute theories of punishment... 4 b. Relative theories of punishment... 5 c. Unified theories of punishment... 7 III. Is there any preventive effect at all?... 7 IV. Why the link between criminal law and security?... 13 V. Criminal law concepts fostering expectations of security... 14 VI. How can security be achieved or fostered... 15 Criminal law and the criminal justice system most often are linked to the concept of security, as is, by chance, also this conference. Punishment is legitimised because it protects us from evil. No wonder, criminal policy is focused on crime control and protection of society. 1 The argument goes as follows: In a democratic society, doing harm to someone can only be legitimate when common high-grade interests are protected. The logic of protection and defence pervades criminal law to such an extent that you will find it almost everywhere, be it with reference to the criminal justice system as a whole, be it with reference to a specific norm. However, although the link between criminal Law and security seems so obvious that it does not need to be argued anymore, I will try to analyse that relationship in the following remarks, in order to clarify their relationship. 2 The problem arises from the fact that protection and criminal law have completely different perspectives. On the one hand, protection against attacks or offences necessarily looks to the future. Whatever has been damaged or hurt already cannot be protected anymore, but must be 1 2 QUELOZ 2010, 95. The following reflections are based on arguments developed in: NIGGLI / MAEDER 2010, 2011, 2012 and NIGGLI / MAEDER, in print.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 2 of 17 repaired or healed. The metaphor of protection, hence, is a prospective one. Criminal law, on the other hand, necessarily has a retrospective orientation. I. Time perspectives Criminal law looks back to the past, it looks back to a deed. This perspective is a necessary consequence of most basic principles, stemming already from the age of enlightenment, or more directly from Paul Johann Anselm von Feuerbach (1775-1833), the great reformer and criminalist and his principle of nulla poena sine lege (or more complete: nullum crimen, nulla poena sine praevia lege poenali), meaning that there can be no punishment without a prior and precise norm stating so. Feuerbach came up with these principles because, as an intellectual disciple of Immanuel Kant (1724-1804), he was unsatisfied with the situation that the courts made up (or at least changed) their charges in the course of the trial going on. Now, Feuerbach s basic idea was that we need to define beforehand what one is allowed to do and what not. If we do want to blame someone for not abiding by the law, this presupposes that the one to be blamed had at least the possibility to behave correctly. And this, in turn, presupposes that he was able to know what is expected of him, i.e. that there was a norm saying so which served as information and criterion. The consequence of these arguments is, of course, clearer and simpler for countries, which follow the European tradition of codification than for common law countries, since there does not always exist a statutory definition of every crime in common law jurisdictions. But on the whole it might be safe to state that, by and large, Feuerbach s principles are valid throughout the world. Take for example ex post facto laws which are forbidden almost everywhere, although, here again, countries in the codification tradition are, generally speaking, much stricter on this subject than are common law countries. However, the still existing differences between the different legal traditions are alleviated by the fact that the U.S. constitution 3 as well as the European Convention on Human Rights 4 prohibit them. Take for example the Swiss regulation in article 1 of the Swiss Penal Code (a regulation almost identical to 1 of the German Penal Code or to art. 111-3 of the French one): Art. 1 No sanction without law A penalty or measure may be imposed only for an act expressly sanctioned by law. Such regulations conform perfectly to the ideas and concepts of Feuerbach. However, they have huge implications for the criminal justice system. I have already hinted at the necessity to lay down precise regulations of do s and don ts and the prohibition of ex post facto laws, but there is more to it. 3 4 Art. I, sect. 9, clause 3 U.S. constitution. Art. 7 European Convention on Human Rights.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 3 of 17 Since the regulation states that penalty may be imposed only for an act this means that it can only be imposed after the act, i.e. after the act has actually been committed. Punishment for the sole imagination of an act, the sole thinking or dreaming of such an act cannot be punished if the act itself has not been attempted at least. There is no possibility of a punishment before that very moment, no possibility of a direction towards future possible development, in short, no possibility of preventive punishment. As long as a potential perpetrator does not start to act against the law, he is safe under the law and even protected by it. Accordingly, and other than in the field of ethics, it remains indifferent why exactly I conform to the law. I am qualified as a law-abiding citizen regardless of my motives and convictions for that conformity of mine. Whether it is cowardice, inability, weakness or contrary to all this respect of the law, all of these causes are treated alike. But there is another reason yet why punishment always looks back to the past: the principle of guilt. If we leave aside strict liability, normally, punishment prerequisites a fault and this fault can be defined with regard alternatively to the perpetrator himself or, alternatively, his behaviour, his deed. If, contrary e.g. to the national-socialist law of the 1930s, we don t focus on the perpetrator but his deed, we are limited to reactions to deeds. But in re-acting to perpetrations we necessarily come too late. The damage is done and cannot be made undone. 5 The actual victim of the crime evidently has not been protected by criminal law. Hence, time orientations, time perspectives of criminal law on the one hand and the logic of protection on the other clash. Protection (of any kind) can only exist if there exists a preventive effect (of any kind) of criminal law. If this were the case, punishment would not be legitimate as protection from the actual wrong (which has already been done) but from future possible evil. But even here, even if we assume the existence of such a preventive effect of punishment, any reaction of the criminal justice system depends on at least one concrete perpetration already realised. Let us imagine for a moment that we were able to identify with almost complete certainty future developments already in babies, let us imagine that we could identify future murderers already when they are still children. Would it be acceptable to incarcerate them before they commit any of their future deeds? Certainly not under the title of punishment, since no offence has yet been realised and hence no legitimacy of a possible punishment would exist. This, of course, would present itself different from the point of view of administrative law according to which preventive measures are completely normal and acceptable. However, we would not think about guilt and punishment, but rather concentrate on prevention. In the past 25 years criminal law has increasingly come under pressure from the public. One could be tempted to ascribe this to the shift of focus away from freedom towards security which we acknowledge, but then, given the different outlooks and time perspectives of security policy and criminal justice, we would not expect this shift to have immediate effects on expectations towards the criminal justice system, since the link between criminal law and security is not an obvious one. Rather, these expectations have been fostered and cultivated by politicians all over the world, making promises of increasing security by changing criminal law, i.e. by increasing penalties, as if an increase of penalties could directly and immediately lower crime levels and thereby increase security. 5 See also JESCHECK/ WEIGEND, 1996, 4.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 4 of 17 It is this unfortunate commingling of perspectives (prospective of security policies; retrospective of criminal law) which is at the root of the actual misunderstanding. However, it would be unfair to say that the expectations towards criminal law exclusively stem from an outsider s misunderstanding of criminal justice. Rather, it was and is fostered by criminal law itself, above all by the theory of punishment and the theory of protected legal assets (Rechtsgutstheorie). Let us turn to them now. II. Theory of punishment 6 Usually, theories of punishment are divided into absolute and relative theories, following the distinction of PROTAGORAS 7 : No one punishes a wrongdoer from the mere contemplation [324b] or on account of his wrongdoing, unless one takes unreasoning vengeance like a wild beast. But he who undertakes to punish with reason does not avenge himself for the past offence, since he cannot make what was done as though it had not come to pass; he looks rather to the future, and aims at preventing that particular person and others who see him punished from doing wrong again. This has been adopted by SENECA 8 Nam, ut Plato ait, nemo prudens punit, quia peccatum est, sed ne peccetur. and from here it has conquered the world. As one can immediately grasp, the difference made is essentially one of time perspectives, while absolute theories look to the past (quia peccatum), relative ones look to the future (ne peccetur). The difference, hence, seems analogous to the difference between the punishment und prevetion perspectives. a. Absolute theories of punishment Absolute theories of punishment like revenge, retribution or atonement look back to the past, to the criminal deed, and aim at balancing the harm done. They draw their legitimacy from the idea of justice, of just desert, making sure that punishment will correlate with guilt. Doing deliberately harm to a perpetrator tries to compensate the harm done by him and thereby tries to re-establish the balance of justice. Punishment, therefore, should neither be harsher nor lighter than the perpetrator s guilt. In this perspective, punishment does not serve any social purpose or goal apart from the re-establishment of equivalence, it does not aim at prevention of any kind, it is in fact absolutus, i.e. detached from concrete goals, but serves the purpose of justice exclusively. 9 6 7 8 9 For an account of the different theories of punishment and their relation to security see NIGGLI, 1995. PLATO, Protagoras (324 a und b), translated by W.R.M. Lamb, Cambridge, MA 1967. SENECA, De ira, Book 1/19. TRECHSEL/ NOLL, 2004, 16; SEELMANN, 2009, 21 ff.; RIKLIN, 2007, 5 N 27 and 30 ff.; STRATEN- WERTH, 2005, 2 N 10; BOMMER, Vor Art. 19 N 46,; ROXIN, 2006, 3 N 2 and. 7; KIENAPFEL/ HÖPFEL, 2005, Z 2 N 3 u. 5; FUCHS, 2004, Chapter 2 N 2 ff.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 5 of 17 Retribution cannot heal wounds (no victim of a murder will come back to life) or repair damages, and of course, the infringement of law will not be remedied either. Retribution can only re-establish the claim of law for integrity; it can only reinforce the expectation of legal behaviour. Such a pure retribution perspective, detached from all further social aims, is not frequent nowadays in Europe. Rather, governmental interventions in the realm of personal liberty and property are judged by their contribution to the common order. This orientation towards protection (be it of public order or public peace 10, be it of human dignity 11 ) leads necessarily towards prevention and hence away from absolute theories and their focus on guilt. Retribution as a goal in its own right, today in Europe seems to be rather delegitimised. 12 b. Relative theories of punishment Relative theories of punishment do not focus on what has happened but rather on what should not happen again. They are essentially prevention theories. 13 Punishment, in this perspective, is linked in this perspective to its social benefit. It is not a goal in its own right but rather a means to an end. 14 Its legitimacy stems from its social benefit. Two distinctions are usually made in this context. On the one hand, punishment can be focused either on the individual lawbreaker or on all potential perpetrators (that is the difference between general and special prevention). On the other hand, we can distinguish between a focus on negative (deterring) effects and positive (educating) effects and call the theories negative and positive prevention theories respectively. The combination of these two distinctions gives us the traditional matrix of prevention theories. Table 1: Types of prevention theories General Special Negative Deterrence Positive Integration Re-Socialisation General prevention addresses everybody and aims in its negative variant at deterrence. Everybody is considered a potential lawbreaker who can be deterred by the threat of punishment. In its positive variant, punishment addresses everybody, but as law-abiding citizens who are confirmed in their common beliefs in the law, punishment here acts as a factor of integration. Punishment of lawbreakers stabilises the law-abiding community and makes clear to everybody 10 11 12 13 14 NIGGLI, 1999. KUNZ, 1998. BOMMER 2007, Vor Art. 19 N 47 and N 60; in detail TRECHSEL/NOLL 2004, 20 ff.; RIKLIN 2007, 5 N 28; STRATENWERTH 2005, 2 N 10; ROXIN 2006, 3 N 8; FUCHS 2004, Chapter 2 N 17. TRECHSEL/NOLL 2004, 17; RIKLIN 2007, 5 N 34. SEELMANN 2009, 22; RIKLIN 2007, 5 N 34 f.; ROXIN 2006, 3 N 11; FUCHS 2004, Chapter 2 N 5.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 6 of 17 that values incorporated in norms still are valid. 15 Special prevention theories on the other hand aim at the individual perpetrator. Punishment here serves as a means of deterrence (in its negative variant) or as a means of education (in its positive variant). In the latter sense, lawbreakers shall be bettered, re-socialised and educated. It is sufficiently known that all these theories have their flaws and most of them, if applied in a pure form, lead to inacceptable results in a pure form: An orientation towards negative general prevention (deterrence) demands punishments as draconian and terrible punishments as possible, even for petty offences. If deterrence is the goal, then more and harsher punishment certainly is more effective and hence better. This, of course, is not only disproportionate, 16 but also an infringement of the perpetrators human dignity, since he is treated as a mere object which serves common purposes. A pure application of special prevention perspectives leads to the result that perpetrators with minimal risks of recidivism (e.g. because of their age or a disease) could not be punished even for very serious crimes. The same would hold true for crimes with no risk of repetition (e.g. the national-socialist war crimes) or for which the risk of recidivism is very low (as e.g. for homicides). No doubt that this would not be acceptable to the general public. 17 Conversely, authors of even the pettiest offences would need to be incarcerated for a very long time, if such seemed necessary to prevent them from further delinquency. This, however, would not be in accordance with our actual understanding of personal freedom. 18 We can leave aside positive general prevention theory in this overview since (1) it is most difficult to test empirically and (2) it does speak to a possible prevention effect of the criminal justice system as a whole but not to that of individual norms. Now, I shall not doubt that the criminal justice system as a whole shows a preventive effect, although we could not do without punishment even if such an effect did not exist as a simple reflection shows: If a rule is to be taken seriously it does need a consequence attached to it in case of failure to respect it. If it does not matter whether we conform to a rule or not, if there is no difference at all, then such a rule cannot be distinguished from a mere wish (cognitive expectations are not distinguishable from normative ones). Hence, consequences to rule-breaking are part of the rule s definition. The main problem with every theory of prevention consists in the fact that such a theory necessarily needs to detach itself from the principle of guilt, and therefore detach itself from individual justice. Since it is not focused on the past, on an offence already realised, but inversely on expectations, on prospective prevention of potential future offences, such a position cannot be linked to a specific offence, but must use either the perpetrator or society s need for security as a starting point. So, whenever punishment is to remain linked to justice, and thus to a perpetrator s guilt, such guilt can present only an upper limit to a possible punishment, but never its cause and ground. 19 15 16 17 18 19 TRECHSEL/NOLL 2004, 17; SEELMANN 2009, 22 f.; STRATENWERTH 2005, 2 N 20; RIKLIN 2007, 5 N 14 ff.; ROXIN 2006, 3 N 21 and 25 ff.; KIENAPFEL/HÖPFEL 2005, Z 2 N 6; FUCHS 2004, Chapter 2 N 14 f. u. N 20 ff. RIKLIN 2007, 5 N 44: Justice of terror ; ROXIN 2006, 3 N 32. STRATENWERTH 2005, 2 N 18; RIKLIN 2007, 5 N 42; ROXIN 2006, 3 N 19. ROXIN 2006, 3 N 17. STRATENWERTH 2005, 2 N 18; RIKLIN 2007, 5 N 28 and 45.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 7 of 17 c. Unified theories of punishment The mentioned deficits of absolute and relative theories of punishment have led to so-called unified theories of punishment. These theories try to unite ideas of retribution with ideas of prevention in different variants. We can distinguish retributive unified theories of punishment (which include absolute as well as relative positions) 20 from preventive unified theories of punishment (which embrace only different relative 21, 22 theories). A unification would read like this: Society shall threaten to punish, the penalty shall be pronounced and executed with the aim to protect society against further offences (prevention), but all this shall be done in a way corresponding to the wrongdoers guilt (retribution), so that prevention is realised in a just way. 23 In this perspective, guilt is a necessary but not sufficient condition of punishment, which merely serves as a delimiter. The actual and final reasons of punishment, however, are legitimate public interests of prevention which can only be realised through punishment (punishment as ultima ratio). 24 It is typical for such a position that it commingles the punishment s ground (the reason why punishment exists, why it is necessary) with its reason (the aim punishment seeks to realise). This results in a general confusion because punishment as a reaction to individual wrong (retrospection, retribution, justice), which is delimited by general common interests (prospective, preventive), is not anymore distinguishable from punishment as a means for common social aims (prospective, preventive), which is delimited by guilt (retribution, retrospection, justice). In continental Europe, unified theories of punishment are dominant in the criminal justice discourse. 25 The main problem with these theories, however, remains that even their exclusively prevention oriented variants cannot dispense with retribution and guilt (at least as a delimiter of penalty). 26 In sum, two things are obvious, (1) that punishment should be simultaneously retrospective and prospective, that it should, therefore, look simultaneously back and forward. In accordance with this rather strange construction, the concept of guilt has a double function; it should simultaneously justify and delimit punishment. (2) The second point that seems undisputable is that, obviously, punishment is credited with a preventive effect, it is expected to protect. III. Is there any preventive effect at all? According to the prevalent criminal law theory in continental Europe, criminal law aims at prospective-preventive protection of socially important goods and values. Criminal law is construed from a protection perspective from which it draws its legitimacy. Doing so, however, means that we enter the field of empiricism, for if the proposition that criminal law protects real-life goods (and not only metaphysical ideas) holds true, then, of course, we should be able to measure that empirically. Alas, empiric, criminological results are rather disappointing in the 20 21 22 23 24 25 26 ROXIN 2006, 3 N 33 ff. ROXIN 2006, 3 N 37 ff. See also KIENAPFEL/HÖPFEL 2005, Z 2 N 8 f. BOMMER 2007, Vor Art. 19 N 59, RIKLIN 2007, 5 N 47. Cf. STRATENWERTH 2005, 2 N 28. ROXIN 2006, 3 N 33 ff. ROXIN 2006, 3 N 51 ff.; FUCHS 2004, Chapter 2 N 23 ff.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 8 of 17 sense that a preventive effect (negative as well as positive) seems to be very limited and harsher punishment does not help for our need for security. 27 However, researching the effects of punishment remains rather difficult. Let us take a simple example. Table 2 shows the sentencing rates for selected crimes and offences in 1984 and 2010 in Switzerland. Now, irrespective of all the discussions about the validity of the different types of crime statistics, what could we possibly conclude from such a table for a possible preventive effect of criminal law? Do 7238 convictions for theft mean that the corresponding norm in the Swiss Penal Code (art. 139) works well and even better than 30 years ago? Do only 8 convictions for murder in 2010 (with a reduction of 27 per cent over time) prove the efficiency of the relevant article 112 or do they rather show that the provision has become unnecessary? 28 Of course, we all know that statistics (of whatever kind) cannot answer the question whether a specific behaviour should be punishable or not. No statistic at all can ever tell us whether a norm was effective or not because this would suppose that we have data of an identical situation minus the norm in question. Moreover, statistics cannot really explain why crime rates go up or down, because already the question whether crime has increased or decreased is tough to answer, 29 let alone taking into account changes in prosecution behaviour or differences in the sentencing behaviour of courts. 27 28 29 In detail KUNZ, 2008, 26 N 1 ff. Fascinatingly enough, the Swiss government in fact seems to argue like this: For example, art. 278 Swiss Penal Code (Interference with military services) shall be abolished because its practical weight is too small since there were only 124 convictions from 1960 to 2007 (see Erläuternder Bericht zum Bundesgesetz über die Harmonisierung der Strafrahmen im Strafgesetzbuch, im Militärstrafgesetz und im Nebenstrafrecht, 41 (see www.ejpd.admin.ch/content/dam/data/sicherheit/gesetzgebung/strafrahmenharmonisierung/vn-ber-d.pdf, 4.7.12). KUNZ, 2008, 19 N 11 f.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 9 of 17 Table 2: Sentences for crimes and offences 1984/2010 in Switzerland Sentences against adults for crimes and offences 1984 and 2010 absolute 30 per 100'000 inhabit. 31 1984 2010 1984 2010 Theft 9'283 7'238 143.79 91.97-36.04% Sexual acts with children 449 319 6.95 4.05-41.72% Rape 69 112 1.07 1.42 33.15% Negligent injury 831 1'050 12.87 13.34 3.65% Simple bodily harm (assault) 724 2'593 11.21 32.95 193.79% Grievous bodily harm (assault) 32 132 0.50 1.68 238.38% Unintentional killing (negligence) 425 140 6.58 1.78-72.98% Intentional killing (wilful) 41 65 0.64 0.83 30.05% Murder 9 8 0.14 0.10-27.08% Gross violation of circulation regulations 3'253 25'605 50.39 325.34 545.68% If we turn to the question whether punishment has a deterrent effect, we first have to distinguish between effects of the criminal justice system as a whole 32 and the question whether specific changes in the system can have a deterrent effect. 33 As already mentioned, the results are disappointing. Important, so it seems, is primarily the risk of being sanctioned, of a reaction to the behaviour at all and that this happens rapidly. Harshness of punishment or the type of punishment are clearly less important in comparison to the first mentioned factors. 34 Above all, the psychological process of decision making seems much more complicated than usually proposed 35 by the classical deterrence model, and especially rewards to be gained by noncompliant behaviour are especially important. 36 One very simple argument might serve as an example of this: Excluding the aggravated death penalties we know from the Middle Ages, we probably can safely assume that death penalty is the harshest threat of punishment one can face nowadays. Evidently, though, if the goals pursued are worth it, people risk their lives. Death penalty was very common in the Middle Ages and the Early Modernity and the Constitutio Criminalis Carolina of 1532 (Peinliche Halsgerichtsordnung Kaiser Karls V.) threatens rapists, 30 31 32 33 34 35 36 Data can be found at: www.bfs.admin.ch/bfs/portal/de/index/the-men/19/22/lexi.document.21939.xls, 4.7.12. Permanent resident population at the end of the year, Data can be found at: www.bfs.admin.ch/bfs/portal/de/index/themen/01/02/blank/data/01.document.67175.xls, 4.7.12. See e.g. SUHLING/ GREVE, 2009, 420 f.; ROBINSON / DARLEY, 2004, 197. See the overviews of VON HIRSCH / BOTTOMS / BURNEY / WIKSTRÖM, 1999 and NAGIN, 1998. KUNZ, 2008, 25 N 8 ff.; KLEIMAN / KILMER, 2009, 14234; ROBINSON/DARLEY, 2004, 174 and 199 f.; KAISER, 1997, 81 ff. For the importance of individual factors see. PIQUERO / PATERNOSTER / POGARSKY / LOUGHRAN, 2011; for the importance of social norm see WENZEL, 2004. BAKER / PIQUERO, 2010; WARD / STAFFORD / GRAY, 2006; MULDER, 2008.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 10 of 17 robbers, insurgents, rioters, abortionists, and manslaughters with death penalty by the sword, 37 arsonists with death through fire 38 and burglars with the gallows. 39, 40 It is not the lack of punishment threats which is significant of the early ages, but the lack of police. 41 Remember, that HENRY FIELDING, the famous author of Tom Jones, together with his brother was founder of the first police troupe of London, and this in 1749! Or take another example from Switzerland, well-suited because this country with its 26 cantons, all of which handle prosecution differently, is like a small laboratory for research on the effects of punishment. For driving under the influence of alcohol you can be punished with a fine or with (conditional or unconditional) imprisonment. The different cantons have very different sentencing habits and in the next figure we see the percentage of each punishment type by canton of sentence. The perpetrator had been convicted between 1987 and 2003 and had no prior conviction. The fine (green) is only 10% of all reactions in the canton of Uri (UR) but more than 50% in Schwyz (SZ) although the two cantons are located very near to each other. The same holds true for the suspended prison term (yellow) ranging from over 80% to under 40%. Unsuspended prison term (red) is the least common sanction since we look at perpetrators without a prior conviction. As becomes clear from the black bullet in the lower section, specific recidivism rates are around 5% within 3 years of the conviction. Most important, though, is the fact that these rates are not influenced by the sanction handed down. 37 38 39 40 41 Art. 119, 126-129, 133 und 137 CCC. Art. 125 CCC. Art. 159 und 162 CCC. RADBRUCH, 2001, 320 f. For a nice and short summary of the state of things see MORTIMER, 2008, 216; compare to that the situation in the 16 th century: MORTIMER, 2012, 292 and following.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 11 of 17 Figure 1 Recidivism after conviction for drunk driving (1987-2003) - different sanctions and cantons No prior conviction 42 The finding that recidivism is completely independent of the type of sanction holds also true if we look at recidivists themselves. In Figure 2 we see again convictions for drunk driving between 1987 and 2003 in Switzerland (according to canton of sentence), but this time only sentences are shown for drivers with at least one prior specific conviction for drunk driving. Accordingly, the sanction gets harsher and red (unconditional imprisonment, i.e. unsuspended prison term) dominates, while green (fine) has almost vanished. However, still the proportion of yellow (suspended prison term) varies greatly from under 5% in Schaffhausen (SH) to over 50% in Geneva (GE). And yet, the black dots indicating the specific recidivism rates in the next three years after the conviction are not influenced by the primary sanction at all. Again, these findings imply that if there is a preventive effect at all, it is not dependent on the type and harshness of sanction but rather on from the apprehension risk, or the general public rejection of the behaviour. The same trends, by the way, are found with other offences. 43 42 43 See ww.bfs.admin.ch/bfs/portal/de/index/themen/19/04/03/02/02.html, unfortunately in German and French only. FEDERAL OFFICE OF STATISTICS, Media information 19.5.2009, www.bfs.admin.ch/bfs/portal/de/index/news/medienmitteilungen.document.120361.pdf.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 12 of 17 Figure 2 Recidivism after conviction for drunk driving (1987-2003) - different sanctions and cantons At least one specific prior conviction 44 Hence, different criminal sanctions seem to be mutually exchangeable to a large extent without loss of preventive effect. 45 A suspended prison term prevents perpetrators of future offences just as well as an unsuspended one or a fine. Therefore, if there is deterrence at all, obviously, it does not depend on the type or harshness of sanctions. This, by the way, can easily be corroborated by a further fact. If you care to look at the incarceration rates (per 100 000 inhabitants) in the U.S.A. they present themselves as follows: 44 45 See ww.bfs.admin.ch/bfs/portal/de/index/themen/19/04/03/02/02.html, unfortunately in German and French only. KUNZ 2008, 26 N 24.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 13 of 17 Prison inmates per 100 000 inhabitants in the U.S.A. 46 Year 1880 1904 1923 1950 1972 1980 1985 1990 1995 2000 2005 2007 2010 61 69 74 118 93 139 200 292 411 478 491 506 497 For comparison, look at the numbers (including prisoners in custody) in Switzerland for the last 10 years: Prison inmates in Switzerland per 100 000 inhabitants 47 Year 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 82 79 71 68 71 81 83 79 76 76 79 79 78 While in Switzerland prison population remained constant over the past 10 years, in the U.S.A. they constantly increased. Seeing these numbers, one would guess that a growing number of prison inmates is correlated to a diminishing number of offences, but this holds not true. Rather, criminality started to decrease in 1991, more than 20 years after the prison population exploded. Harsher criminal laws cannot be the cause of the decrease which otherwise would have started earlier and stronger. 48 Summing it up: Although we commonly link criminal law with security and protection, the assumption that criminal law can protect specific goods seems rather at odds with our findings. But if the preventive effect of criminal law is so limited, 49 why then do we create this link so naturally? IV. Why the link between criminal law and security? The answer to that question is twofold, institutional and conceptual. On the conceptual level we have to distinguish the general public values we foster from the concrete, specific actual objects which can be aggressed (mostly physical), we distinguish Rechtsgut (legal asset) as a general value we are holding from the Angriffsobjekt (object of attack). For example, human life constitutes such a legal value (legal asset), but as such it cannot be aggressed directly, but only in aggressing one or more human beings. So we distinguish the idea of life from its con- 46 47 48 49 Source for the years up to 1972: STUNTZ, 2011, 33; for the following years: Sourcebook of criminal justice statistics Online, Table 6.23.2010: Rate (per 100'000 resident population) of sentenced prisoners under jurisdiction of State and Federal correctional authorities on December 31 (see www.albany.edu/sourcebook/pdf/t6292010.pdf, 4.7.12). Source: Federal Office of Statistics, see www.bfs.admin.ch/bfs/portal/de/index/themen/19/03/05/key/ueberblick/wichtigsten_ zahlen.document.128203.xls, 4.7.12. STUNTZ, 2001, 36 f. KAISER, 1996, 31 29 ff., 34: keine [ ] Anhaltspunkte für beachtlich abschreckende Wirkungen von Strafen ergeben, weder bezogen auf Schwere noch auf Wahrscheinlichkeit. Gesetzlicher Strafrahmen, Sanktionsart, Sanktionswahl und richterliche Strafhöhenbemessung haben danach relativ geringes Gewicht für die Befolgung von Gesetzen, wenn überhaupt.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 14 of 17 cretisations. If criminal law protects anything at all, it protects these ideas, these values (as realised in the criminal provisions) and it does so by making sure that anyone who disrespects that idea or value shall face a common public reaction (which normally would be punishment). In this sense, punishment states we do not back off, we hold strong to our values and convictions. Criminal law, then, stabilizes (like law in general) specific expectations (contrafactually) as LUHMANN would say. 50 However, as explained before, (criminal) law cannot protect concrete objects of attack. In the realm of real physical life, it is not norms and laws that protect concrete, specific objects of an attack, but by people or technical devices. Objects and people are protected by the police or other security forces. It is quite easy to grasp that: If I want to prevent someone from entering a door, I will not primarily take refuge to a norm of prohibition, but simply lock it. This becomes obvious in cases where there is no conscious being to be addressed, no human actor: If I want to prevent things from falling down, I do not prohibit them to do so, but secure them. Of course, norms can help to convince or to explain my provisions. A sign over the door saying No entrance would help to explain why it is locked. But if it is important to me that no one enters it, I would lock it up. Now, for the second level, the institutional one: Institutionally, the link between criminal law and security consists in the police. It is the police who are responsible for the implementation of criminal norm. It is the police who is enacting and executing them and it is the police whom we call to protect us if we feel threatened or aggressed. Because the police are the criminal justice system s most visible part it frequently is identified with it. And, of course, with regard to police law we find realised all the expectations that we found incompatible with criminal law. Police law is part of administrative law, as such there is no problem with its prospective orientation. Police law can pursue prevention and hazard control, and it should do so and frequently it will achieve it, too. Nonetheless, police law and criminal law are fundamentally different and the link between them is basically institutional only. V. Criminal law concepts fostering expectations of security It would not be fair, though, to trace the link between criminal law and security to exogenous factors alone. Developments in the criminal law theory in the 19 th century, especially at its end, have contributed at least as much. Especially, FRANZ VON LISZT (1851-1919) contributed to the confusion or mingling of retrospective criminal law and prospective police law. Probably, most know is his cascade of goals to aim at for criminal law he developed in his Marburg programme in which he demands: 1. rehabilitation (reformation) of offenders who can be rehabilitated (reformed), 2. deterrence of offenders who do not need to be rehabilitated (reformed), 3. incapacitation of offenders who can not be rehabilitated (reformed). 51 With such a programme, of course, police law duties as defence against dangers and risks are directly incorporated into criminal law, which directly opposes classical ideas of punishment and retribution, as proposed by FEUERBACH. Criminal law s aim and goal now consist in the 50 51 LUHMANN, 1987, 40 ff. VON LISZT, 2002 [1882/1883], 42.

Keynote Speech. Asian Criminological Society. 4th annual conference. ACS 2012 Seoul Page 15 of 17 protection against risks that could be caused by a convicted perpetrator. This does not conform anymore to classical concepts of punishment or retribution as becomes obvious in the third postulate, incapacitation of offenders who cannot be reformed. 52 We focus on the future exclusively and the actual offence committed serves merely as a symptom or an indication for the offender s potential future dangerousness. The criminal offence represents only the occasion of the governmental reaction, not its cause. Whether we block a road because there is a high probability of an avalanche or we imprison someone because there exists a risk that he will commit an offence, is structurally the same. We simply do not need the concept of guilt to rest our measures on. So, it seems quite obvious that even criminal law itself has set important causes to mix retrospective and prospective orientations. Unfortunately. VI. How can security be achieved or fostered If we ask now how, then, security can be achieved or at least be fostered, the answer does not and cannot refer to criminal law, punishment or punishment threats. The answer simply is: through the police, through policemen. Let us have again a look at the U.S.A.: In the 1990s New York, like many other major city in the U.S., witnessed a rather important decrease of criminality. In the same decade, prison population in the State of New York showed a growth rate below average, and a further decrease, later on. What had happened? In the year of 1990, we counted 367 policemen per 100 000 inhabitants. This rate was increased to 508 policemen per 100 000 inhabitants in 1997, the biggest increase of all major cities in the U.S. 53 States that, like New York, increased the number of policemen above average and in which prison population s increase rates were below average, saw an average drop in violent crimes of 31%. The respective decrease in other states was at 2%. So, more policemen in the streets seem to correlate with decreases in criminality and prison populations. 54 Hence, STUNTZ concludes: Putting more police officers on city streets belongs on a very short list of policy moves that should reduce both crime and the number of prisoners. 55 Of course, all statistical propositions need to be taken with caution. But then, it seems safe to conclude that concrete technical provisions are much more effective in prevention and protection of concrete goods than criminal law provisions. Hence, if security is our goal, we should not tamper with criminal law or punishment threats but concentrate on policing. But, of course, the question remains whether we are ready to pay the price for such an undertaking. Security is a costly commodity, and it requires its price to be paid not only in the currency of money but also in that of liberty. 52 53 54 55 See fort he Schulenstreit (clash of schools): DUBBER, 2005 (download at: http://ssrn.com/abstract=829226). STUNTZ, 2011, 287 et seq. STUNTZ, 2011, 288; see also KLEIMAN/KILMER, 2009, 14230; ROBINSON/DARLEY, 2004, 202 ff. STUNTZ, 2011, 288.

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