Penal Sanctions Research Articles

Julia Dickson-Gómez on Francisco Bastos’ “Structural Violence in the Context of Drug Policy and Initiatives Aiming to Reduce Drug-Related Harm in Contemporary Brazil: A Review”

Bastos’ article on structural violence and drug policy in contemporary Brazil raises a number of big questions that substance abuse researchers, particularly social scientists and public health researchers, should tackle to a greater extent than they have to date. The first big question raised by Bastos’ article is the extent to which international drug treaties influence, and often hamper, national drug policies that may reduce the harm associated with illicit drug use. As Bastos hints, more powerful countries (often those that have problems with “demand”) have more power to dictate the content of international drug treaties than poorer countries (often those that supply). International conventions have defined particular drugs as “illicit.” These treaties—and the recent history of Brazil’s dictatorship—have made drug reform “timid” at best. While drug reform has occurred, moving national law and policy from extremely punitive criminalization to some more tolerant and flexible approaches, these efforts have been hampered by local police enforcement and ambiguities in the law that allow judges considerable latitude in prosecution. For example, a number of state legislations protect the implementation of needle and syringe exchange programs (NSEP) to reduce druguse-related harms. In spite of this, national law has not protected outreach workers or NSEP, and outreach workers and users of these programs continue to be harassed by local police. Law 11343, passed in 2006, draws a distinction between personal use and trafficking with penal sanctions recommended only for the latter. However, the distinction between the two in terms of the amount or nature of the substance was not clear in this law, and left to an interpretation of “contextual factors” and the “personal characteristics and history of each individual” giving each judge considerable and somewhat arbitrary latitude in deciding who should be prosecuted as a drug trafficker.

International and National Legal Framework for Maritime Environment Protection in the Hellenic Legal Order

It is known that the subjects of maritime pollution, because of its international extensions and extensive environmental damage that this consequences, are regulated by International Conventions and basically by the International Convention MARPOL 1973, which was ratified (with its protocol of 1978) by the law 1269/1982.However, these regulations were judged in European Union level as insufficient. Thus began from the European Union an effort for creation of a European regulating frame, equipped with effective, deterrent and proportional sanctions, basically penal, for the successful confrontation of pollution problems created by vessels.In parallel with the international and European legislative frame has been developed also national legal frame in which are forecasted not only penal sanctions but also administrative and ddisciplinary which are imposed in the Hellenic seamen depending the case. All these legal forecasts aim in the protection of sea environment one of the most important for people’s existence.

Relational Constitutionalism and the Management of Religious Disputes: The Singapore 'Secularism with a Soul' Model

This article interrogates the question of how a secular state should manage religious disputes within the particular multi-religious context of Singapore, which practises ‘secularism with a soul’. Such situations may be addressed by law-based approaches, such as invoking justiciable entitlements or imposing deterrent penal sanctions. Approaches associated with relational constitutionalism, which is concerned with preserving durable relationships and cultivating tolerance and solidarity to preserve the quasi-constitutional norm of ‘racial and religious harmony’, are better suited to addressing inter-religious tensions where the government is not directly involved, to facilitate rapprochement and civil peace. This expands the vocabulary of constitutional discourse beyond rights to encompass other aspects of human relating such as duty, tolerance, sensitivity, common sense and forgiveness as civic virtues, in serving the public good. In religiously and racially divided societies, a commitment to a just relational political association based on ‘soft constitutional law’ norms such as those contained in the Declaration on Religious Harmony, operate against the background of legislative sanctions in the Sedition Act and Maintenance of Religious Harmony Act. Nonetheless, a commitment towards maintaining racial and religious harmony, a form of ‘constitutional patriotism’, is best nurtured not through external regulation, but by dialogue and persuasion.

Public Opinion on Appropriate Sentences – which Public, which Opinion?

Since the collapse of the treatment ideology, public opinion has assumed an increasingly central role as a basis for legitimising current crime policy. It is therefore important to be able to capture and describe the public’s views on penal sanctions. Assessments of public opinion regarding appropriate sanctioning levels are largely made on the basis of different types of survey. The problems associated with how such surveys should be implemented in order to produce valid results have been discussed at length. The issue of how the results should be presented in order to provide a representative picture of public opinion have more rarely been explicitly problematized however. This article examines the question of how large a proportion, and which segments, of the public are represented in different descriptions of public opinion that can be produced based on survey results. The issue is examined on the basis of a national Swedish postal survey, in which the respondents were asked to state which sanction should be awarded in relation to six crimes described in the form of vignettes. The survey shows that public opinion on appropriate sanctioning levels is very varied. Summarizing public opinion is thus not a straightforward task. Different descriptions that are similarly representative in relation to one another lead to different conclusions as to what public opinion views as appropriate sanctioning levels. Routine references to public opinion are thus quite arbitrary unless those who refer to a certain description of public opinion also justify why this particular description is relevant.

An appraisal of the legal frameworks for the control of environmental pollution in Nigeria

This article examines Nigeria’s pollution abatement laws. It highlights some of the problems of these laws, as well as other factors hindering the control of environmental pollution in Nigeria. The article suggests a comprehensive review of most pollution abatement laws with a view to entrenching adequate penal sanctions and enhancing the powers of regulatory institutions and also increasing public participation in environmental protection.

The Human Rights Implications of Contemporary Patterns of Social Control

This article, based on a project of the International Council on Human Rights Policy (ICHRP), explores the human rights implications of contemporary patterns of social control: how laws and policies construct and respond to people, behaviour or status defined as 'undesirable', 'dangerous', criminal or socially problematic. It draws on research across five policy areas: infectious diseases, urban spaces and the poor, policing, migration, and punishment and incarceration, as well as a case study of the Roma in Europe. It points to human rights challenges and ways forward with respect to ideas of crime and criminality, penal sanctions, non-criminal sanctions and 'soft' controls, segregation and exclusion, protection and victims' rights, privatization, surveillance, and policy transfer regimes. At the heart of such a response is the need for a dialogue between human rights advocates, critical social science and social policy analysts, and policy makers. Beginning with an introduction to the 'social control perspective' and its relevance to human rights, the article explores the dominant modes and patterns of social control (and the related challenges and possibilities for human rights advocacy and policy), divided into three broad categories: criminalization and sanctions, segregation, and surveillance. An analysis of underlying forces and contexts, including political economy and global policy transfer regimes is followed by a conclusion that discusses the relevance of human rights principles in monitoring social control, out-lining ways forward for human rights advocacy, including on the specific issue of penalization of people in poverty.

The ‘no man’s land’ of intermediate legal sanctions

This is an exercise in convict criminology, taking its orientation from the literature on legal narrative and storytelling. It addresses a current and long-standing area of criminal justice policy, the use of intermediate sanctions in corrections, doing so from a participant’s perspective. Prison is described as being part of the crime problem, in part because it brings lasting harm to those within its persistent embrace. Intermediate penal sanctions, touted as a true corrections alternative, are shown to have significant shortcomings. Convict criminology and legal storytelling are presented as encouraging restorative responses to instances of harm occurring through both crime and crime control.

Genesis of International Criminal Law

This Paper deals with the contribution of Nuremberg Tribunals in the development of International Criminal law. The authors have observed that the Nuremberg War Crimes Tribunals have played a vital role for dealing only with the cases relating to genocide, war-crimes, war of aggression and further the prohibitions and penal sanctions imposed by various States through Nuremberg Tribunals have led to the development of International Criminal law as it has evolved today. While coming to such a conclusion, the authors have traced the origin and historic evolution of International Criminal Law, particularly, after the end of World War-II when Nuremberg tribunals were established. The authors have observed that after World War-II, the Nuremberg Trials have contributed to the development of International Criminal Law and there have been key radical developments in the meaning, object, scope and mode of practices while dealing with international Criminal justice delivery system throughout the world. The authors argue that even though the jurisdiction of Nuremberg Tribunals to prosecute is limited to crimes related to genocide, war-crimes, war of aggression, nonetheless it was an important foundation in the development of international law worldwide. This paper also considers practical implications for parties to the Rome Statute as well as other countries which were not parties to it.

About Some New Modalities of Individualization of the Punishments According with the New Penal Code (Law no. 286/2009)

The individualization of the penal sanctions is a complex operation, and it is realized in three different phases: The phase of incrimination of the penal offences, the phase of precise determination of the punishment and the phase of the execution of the applied punishment. Starting from this reality, the theory of the penal law makes a distinction between the three phases of individualization that correspond with the three mention ones: the legal individualization, the juridical individualization and the administrative individualization. Within each phases, the penal law sanctions are individualized by the activity of particular authorities, within certain limits and with certain methods.The main goal of the study is to present the new modalities of the punishment individualization, adopted by assuming responsibility by the Romanian Government (Law nr. 286/2009). The study also presents other modalities of individualization of the punishment that exist in German Penal legislation, French Penal Code, Portuguese Penal Code, Model Penal Code, used as example by the Romanian Ministry of Justice, the initiator of the project. Along the study, there are presented some of the issues that could appear within the normal application of these new institutions.

Penal Sanctions, Administrative Sanctions and the 'Una Via' Principle

This is a summary in English of a Phd thesis about the choice between penal sanctions and administrative sanctions. According to the 'una via' principle cumulations of sanctions for the same unlawful acts are not allowed. In criminal law this principle is know as double jeopardy.

Hårdare tag i arbetslivet?

Preventing violence at work: A study of descriptions of safety measures in Swedish trade union journals 1978–2004The purpose of this study is to examine if perceptions of interventions aimed at violence in the workplace have changed since the 1970s. In the beginning of the study period, structural factors are seen as the dominating explanation for workplace violence. The crime perspective rises in the 1990’s and methods of intervention becomes the control- and justice functions of larger society. The result shows search for accountability to be a salient factor for understanding the development towards an increasing use of penal sanctions.

Counterfeit medicines

The occurrence of counterfeit medicines is a constantly growing problem which poses a serious threat to public health in the global. They distinguish from other products because they can harm patients and have fatal consequences. World Health Organization (WHO) assesses this as a serious problem and it take an active part in activities and steps in combating this phenomenon. WHO defines counterfeit medicines as: “deliberately and fraudulently mislabeled with respect to identity and/or source “. WHO estimated that counterfeit drugs account for more than 10% of the global medicines market. Recently those numbers have been updated, and now WHO states that is preferable not to refer to one number for the entire world, but rather to see the specific circumstances in the different parts of the world.Countefeit medicines have been perceived mainly as a problem for developing countries, but through the recent years counterfeit drugs have been found in the developed countries as well. According the data, the problem of counterfeit drugs is known to involve both developed and developing countries. But generally, problem of counterfeit medicines is much more serious in countries with lack legislation, regulatory gaps, weak enforcement and penal sanction. In this paper is presented an overview on the problem of counterfeit medicines, were identifying the factors that are contributing on this problem, were specify types of counterfeit medicine and given overview of activities undertaken to combat this worldwide problem.

GETTING PERSONAL WITH CITIZENS AND CRIMINALS: COMMENTS ON DEMOCRATIC RIGHTS AND PUNISHMENT

Many of us have a sense that there is some tension between a commitment to democratic decision‐making and respect for individual rights. We know that democratic decision‐making procedures can issue...

Canadian and Spanish youths’ risk perceptions of drinking and driving, and riding with a drunk driver

The present research compared Canadian and Spanish youths' perceptions of the potential benefits and drawbacks of driving under the influence of alcohol (DUI) and riding with a drunk driver (RDD). Eighty (41 female) Canadian and 87 (71 female) Spanish undergraduates completed a survey asking about their past and forecasted engagement in DUI and RDD, and their perceptions of the benefits and drawbacks of DUI and RDD. A sizeable proportion of both samples reported DUI and RDD in the past year. Past risk takers forecasted significantly greater chances of engaging in these behaviors in the following year compared to those who had not engaged in DUI and RDD. Both samples provided significantly more drawbacks than benefits of DUI and RDD. Whereas the benefits of both behaviors tended to refer to personal effects (e.g., save money, arrive faster) that occurred before, during, or after driving, the drawbacks referred to a range of outcomes (e.g., accident, kill/injure, penal sanction) that mostly occurred during driving. Although Canada and Spain differ in important respects (e.g., potential penalty for DUI), there were similarities in the two samples' perceptions of DUI and RDD. Young people are aware of the costs of these risky behaviors but nevertheless engage in them. These findings can inform theories of the co-occurrence of risky driving behaviors, and the development of prevention programs that focus on perceived outcomes.

Penal Sanction against Strike: Focused on Decision of Constitutional Court of Korea(2010. 4. 29, 2009HUNBA168)

Penal Sanction against Strike: Focused on Decision of Constitutional Court of Korea(2010. 4. 29, 2009HUNBA168)

Capitalism, Unfree Labor and Colonial Doxa: The Master and Servant Act from Britain to Hong Kong, 1823–1932

AbstractThe Master and Servant Act was a law that allowed the use of penal sanction against workers for breach of contract in nineteenth century Britain. For scholars who believe that wage laborers under capitalism are free from “extra‐economic” coercion, this law was an anomaly. One explanation suggests technological backwardness during the early stages of capitalism as the cause. In this paper I will challenge this account and offer an alternative explanation. As the British Empire expanded, the same law was enacted in many British colonies. If it was the process of capitalist production that rendered the Master and Servant Act necessary, this explanation should also apply to the British colonies. By focusing on Hong Kong, I show that this was not the case. Instead, I show that the use of judiciary coercion could be explained by Bourdieu's notions of doxa, habitus and field.

Paying Back: 30 Years of Unpaid Work by Offenders in Scotland

This article considers the development and use of unpaid work as a penal sanction in Scotland, including its gradual introduction at differing points of the criminal justice process. It is argued that the community service order in Scotland — intended to serve as an alternative to imprisonment — has become a well-established sentencing option, though other penalties involving unpaid work have met with more conditional support. Community service has broadly resisted political pressures aimed at increasing its profile and punitiveness though there is a risk that contemporary policy developments that are aimed, ironically, at decreasing the Scottish prison population may, instead, result in its diversionary capacity being undermined.

Neoliberal penality

The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration - the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s - of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It is important, instead, to explore the arc of penality over a longer course: to relate recent developments to their earlier kin at the turn of the twentieth century. What that larger perspective reveals is that the pattern of confinement and control in the past century has been facilitated by the emergence and gradual dominance of neoliberal penality. By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state. This essay traces a genealogy of neoliberal penality going back to the emergence and triumph of the idea of natural order in economic thought - back to the Physiocratic writings of Francois Quesnay and other economists during the 1760s. It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality.

A Study on Introducing Penal Sanctions against Corporation Crimes based on the Criminal Liability of Corporations

A Study on Introducing Penal Sanctions against Corporation Crimes based on the Criminal Liability of Corporations

Porządek publiczny jako zasadniczy przedmiot ochrony prawa wykroczeń i czynnik rozgraniczający z powszechnym prawem karnym

The author reviews those types of prohibited acts under criminal code and petty offences code which provide for public order protection. This serves as an attempt to prove that a value like public order should rather be protected under petty offences code (or other forms of legal sanctions eg. administrative ones) rather than under criminal law. The scope of criminalisation should not be extended towards criminalisation of acts against public order. This can be summarised in a debate on forms of legal reaction to prohibited acts. The review of the relevant act of law becomes the point of departure to formulate the opinion that public order is a separate object of legal protection. It does not require penal sanctions provided for crimes – in spite of well-established opinions in legal literature that petty offences differ from crimes basically only in the degree of social damage they cause. The author also makes numerous observations of a classical penal reaction indicators which can be described as “punitive type sanctions”. This proves that our times bring an abrupt increase of legal regulations which create norms of public order and prohibit acts of administrative character which do not belong to the area of criminal law and should not require sanctions provided for acts classified as crimes. A thorough examination of types of petty offences made in the article provides a surprising picture of what the legislator included under the sphere of public order. Names of particular divisions of the code are irrelevant here. In the view of the examination of the acts prohibited by petty offences code, public order is recognised by designators, that is objects protected by particular types of acts, regardless of the title of the chapter they were placed in. They include quiet night hours, protection of plants in public green areas, lack of graffiti on buildings, freedom from aggressive prostitution offers, beggary without a substantial cause, lack of soil in public places, conducting a business without registration required by law, registration of place of residence, obeying rules on public roads, freedom from various forms of disturbance of peace and quiet, freedom from infringements of public assembly or no production of skeleton keys and seals or stamps without a licence. There is also a category of bitypical offences that is prohibited acts which are classified as a petty offence or a crime depending on the value of property (eg. theft of an item of values less than PLN 250 is a petty offence, not a crime). In the opinion of the author, if they are classified as petty offences they can also be included in the category of violation of order, although this order has more of a civil that administrative character. Separate comments concern the criteria of classification of petty offences in fiscal penal code.