State Punishment Research Articles

Ne bis in idem: fundamental constitucional right applicable in the relationship between criminal law and the sanctioning administrative law

O objetivo deste trabalho é demonstrar que, diferentemente da práxis, o ne bis in idem constitui direito fundamental constitucionalmente garantido e deve ser aplicado na instância administrativa e na relação entre as vias penal e administrativa geral (decorrente do exercício do poder de polícia). Para tanto, utiliza-se como referencial a teoria da unidade do poder punitivo que, concebendo a repressão estatal em sentido, propõe que os princípios constitucionais limitadores do poder punitivo são aplicáveis em todas suas manifestações. Analisa-se o conteúdo e fundamentos do ne bis in idem, bem como sua aplicação na Espanha e conclui-se que se trata de direito fundamental inserido na ordem jurídica brasileira pelo art. 5º, §2º, da CRFB/88, devido a sua essencialidade na garantia de outros direitos fundamentais e à ratificação de tratados internacionais sobre direitos humanos pelo Estado Brasileiro. Dessa forma, sua aplicação na relação entre as instâncias não demanda outras normas além daqueles já existentes, pois decorre de sua natureza de direito fundamental e da supralegalidade dos tratados sobre direitos humanos, que leva a prevalência do ne bis in idem sobre disposições legais contrárias à sua aplicabilidade.

Labouring out of Adversity: Maconochie, Political Economy and Penal Labour

AbstractThe modern prison emerged at broadly the same time as the discourse of political economy and a new understanding of the social meaning of work. This research explores how one penal theorist, Alexander Maconochie (1787–1860), deployed the ideas of political economy to answer key questions central to early‐19th‐Century debates about work's exact role in penal regimes. The reformation of the criminal, Maconochie argued, should be the primary aim of State punishment and this could be achieved through deploying political economy's ‘invisible hand’ to organise penal labour. The final section briefly explores Maconochie's two opportunities to test his theories and shows that, however intellectually coherent they were, in practice they proved impossible to implement.

Love in Law’s Shadow: Political Theory, Moral Psychology and Young Hegel’s Critique of Punishment

Modern theory of punishment conflates two types of question. The first concerns the justification of state punishment, the second the moral damage that occurs when a person is violated, and how the resulting damage can be repaired. The first question leads to political theory and a particular legally based moral grammar of wrongdoing and punishment. The second goes in the direction of a different moral psychology involving a grammar of violation, grieving and reconciliation. Retrieving the young Hegel’s analysis takes us in the second direction. It provides a critical vantage point from which to view the dominant liberal political theory, including Hegel’s own mature position as a founder of retributive theory. The modern theory of state punishment is legitimated by its public association with a moral psychology of violation, which it at the same time suppresses in favour of its own very different moral grammar.

Punishing crimes of the mind: Sanctions for scientific misconduct as a case for the cultural theory of punishment

The present article is concerned with the symbolism of punishment, using sanctions for scientific misconduct as an exemplary case. By looking at a case not traditionally an object for criminology, it seeks to extend existing cultural theories of punishment to incorporate settings that are not defined by penal law but that nonetheless feature phenomena of deviance and punishment. The article outlines how sanctions for misconduct, much like state punishment, appeal to themes of sacred and evil, uncertainty and disorder. It argues that this appeal to the sacred is both symbolic and instrumental, in that it serves to create and legitimize a position of authority for the journals taking action against scientific misconduct, illustrating how symbolic aspects of punishment relate to aspects of power.

Free Will, Punishment, and the Burden of Proof

Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility. The argument I make in this article, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof. Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt. That same objection holds as well against proposals of non-retributive punishment. The adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures. The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.

Criminal Law, Parental Authority, and the State

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment.

Criminal Law, Parental Authority, and the State

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate offenders into society. I argue that the theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that the reintegrative model provides a better account of the justification and objectives of state punishment.

Punishment and the Burden of Proof

Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility. The argument I make in this paper, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof. Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt. That same objection holds as well against proposals of non-retributive punishment: the adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures. The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.

Small Criminal Lawmaking and Principle of economy

본 논문은 작은 형사입법만들기를 주제로 하여, 그 구현원리로서 경제성의 원리가 형사입법에도 적용될 수 있는지를 살펴보았다. 작은 형사입법만들기란 해석을 통하여 해결될 수 있는 법영역에 입법의 칼을 휘두르지 말 것을 요구하며, 비록 정의가 발견된다고 하더라도 처벌의 공평성이 담보되지 않은 영역에의 입법을 포기하도록 한다. 작은 입법만들기가 수반하는 효과는 다양한 측면에서 찾아질 수 있을 것이다. 우선, 법적 안정성이다. 기존의 형법 틀을 최대한 제·개정함이 없이 해석만으로 형법의 손길이 필요한 영역을 포섭한다면, 법의 외형적 틀이 변하지 않음으로서 법적 안정성을 유지할 수 있을 것이다. 둘째, 입법권 남용의 방지이다. 법의 변화는 연쇄되는 변화들을 요구하게 되고, 그러한 변화의 연결고리들은 기본권침해작용에 있어서의 법률주의를 바탕으로 하기 때문에 더 많은 법들을 파생적으로 양산할 수 밖에 없다. 이는 불가피하게 입법권의 과잉행사 또는 남용으로 이어질 우려가 있음을 간과해서는 안 될 것이다. 셋째, 경제성의 원리이다. 경제성의 원리는 사회현상 전반에 적용되는 원리이며 입법 역시 예외가 아니다. 따라서 작은 입법만들기는 형사입법에서도 경제성의 원리가 구동한다는 의미의 다른 표현이라고 보고자 한다. 그리고 경제성의 원리가 형사입법에도 작동되어야 하는 이유를 법률간의 양립성과 모순, 중복의 문제점 및 국가형벌권의 비대화 및 남용우려에 면에서 살펴보았다. 또한 수범자의 예측가능성과 국가형벌권의 공평성의 면 및 법적 안정성에 관하여도 분석해 보았다. 국가형벌권이나 형사입법을 포함한 권리는 사용하면 할수록 비대해지는 경향이 있다. 또는 반대로 잘못 사용된 권리는 그에 대한 불신으로 인하여 약화되기 마련이다. 반대로 적절한 입법권의 사용은 입법에 대한 수범자의 신뢰를 강화시킨다는 점을 상기하여야 한다. 마지막으로 형사입법의 구체적인 원리들 역시 경제성의 원리로 설명할 수 있음을 살펴보았다. 죄형법정주의의 근간이 되는 심리강제설은 이성적 인간의 합리적 선택이라는 경제성에 바탕한 인간의 행위양식을 전제로 하고 있으며, 법치주의 역시 비교우위라는 일면의 경제성을 담고 있다. 형법의 최후수단성 또는 보충성의 원칙 역시 형법의 탈윤리화 요청과 비범죄화를 통해 경제성의 원리가 구현될 수 있음을 확인할 수 있다. 형사입법이나 법치주의는 가치지향적이라는 점에서 전적으로 경제성의 원리만으로 설명되어질 수 없음은 물론이다. 다만, 여기에서 경제성의 원리를 언급함은, 논문의 출발점과 같이 작은 형사입법을 만들기 위한 또 하나의 논거로서 경제성의 원리가 작동할 수 있음을 확인하기 위함이다.The distinctive characteristics of modern society are summarized by information flood, safty desire and cross-border problems that have been occurred in various areas and efected to society by itself. Especially these characteristics demand to decline abstract and potential risk and the more and more risk members of society feel, they misunderstand that more and more criminal laws the legislative enact, they are safe. As the result, almost today s societies sink deluge of criminal laws which have been generated in recent decades placed a burden on society and its members themselves. So in this study aims to reduce legislative hyperactivity syndrome in respect of criminal justice matters. The name of s so-called small criminal lawmaking means that the sword of legislation should not be brandished in the area where the social problems can be solved by interpretation of existing criminal laws. And then it should be abandoned to legislate if state punishment power can t be execute impartially. It s very important because impartiality, rapidity and validity of punishment system can lift to abide by the criminal laws. Among of methds for small criminal lawmaking this study focuse on principle of economy. Principle of economy originally means a rule in science and philosophy stating that entites should not be multiplied needlessly, This rule is accepted by meaning that simplest of two or more competing theories is preferable and that an explanation for unknown phenomena should first be attempted in terms of what is aleady known. And this principle is able to applied for small criminal lawmaking. Moreover, this theory can be harmonized with legal stability, subsidiarity of criminal law, and principle of proportion in criminal legislation.

CRIMINALIZATION WITHOUT PUNISHMENT

ABSTRACTWhat is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.

Proximity, pain, and State punishment

This article examines the difficulties of calculating the severity of sentences presented by differences in individual penal subjects’ experiences, a key challenge to proportionality-based justifications of punishment. It explores the basic arguments for and against recognising subjective experience, before advancing a model of penal severity based upon the proximity of the pains of punishment to penal State actions. This model could partially resolve foundational problems in giving criminally just sentences. Whilst we cannot wholly reconcile penal subjectivism and objectivism, there are still some opportunities to improve penal policy and sentencing practice by adopting a proximity model for penal severity.

Evolving Democratic Constitutionalism

In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices. The Court’s evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court’s applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments. Given the lack of justification for judicial restraint under the Eighth Amendment, the Article maps a series of possible applications of the Constitution in this area, both on a micro-level—to limit punishments in certain circumstances—and on a macro-level—to bar certain punishments altogether. In particular, the Article reveals the current ability of the Court to apply its Eighth Amendment doctrine to abolish the death penalty and juvenile life-without-parole sentences. In short, the Article demonstrates that society’s standards with respect to criminal punishments have evolved. The question remains whether the justices themselves will evolve accordingly.

Adolfo León Gómez y el presidio en el primer cuarto del siglo XX en Colombia

The present work reviews two works written by Adolfo Leon Gomez, Secretos del Panoptico (Secrets of the Panopticon) and La ciudad del dolor: ecos del presidio de inocentes (The city of pain: Echoes of the incarceration of innocents), related to two basic concepts of criminology that, many decades later, acquired great relevance in the discipline: the political nature of punishment and therapeutic incarceration as a form of social control. They are also a reference work to analyze the evolution of the rights of prisoners in the face of state punishment.

Wringe, Bill. An Expressive Theory of Punishment.London: Macmillian, 2016. Pp. 186. $99.00 (cloth).

Wringe, Bill. <i>An Expressive Theory of Punishment</i>.London: Macmillian, 2016. Pp. 186. $99.00 (cloth).

On Expressivism and Retributivism in ‘The Mighty and the Almighty’

This short comment explores Nicholas Wolterstorff's claims about expressivism and retributivism as justifications for the state's punishment of criminal offenders in his book, "The Mighty and the Almighty." It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

Hegel and the Justification of Real-world Penal Sanctions

This article revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

Hegel and the Justification of Real-World Penal Sanctions

This paper revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

Mass Incarceration and the Theory of Punishment

An influential strain in the literature on state punishment analyzes the permissibility of punishment in exclusively deontological terms, whether in terms of an individual’s rights, the state’s obligation to vindicate the law, or both. I argue that we should reject a deontological theory of punishment because it cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered—including by proponents of deontological theories—to be unjust. The failure of deontological theories suggests a minimum criterion of adequacy for a theory of punishment: it must take aggregation sufficiently seriously that it returns plausible results when scaled up from individual cases to large public institutions. In this vein, I briefly sketch a prioritarian metric for evaluating the use of custodial sanctions as a means of creating and allocating social advantage.

Special issue: Punishment, values and local cultures

This special issue contributes to a discussion that has become central to contemporary comparative penology: how best to explain convergences and divergences between Western states in their deployment of penal power. Its particular focus is on characteristics of local cultures and the underlying and distinct historical values that best account for jurisdictional particularities in penal policy and outcomes. The recent penal history of post-industrial societies is well described in a set of overarching, global narratives, including, for instance, those that describe and interpret the myriad consequences of the arrival of ‘late-modernity’ (e.g. Garland, 2001), as well as others that focus most on the ways in which the expansion of neo-liberal thinking and policy, and the withering of welfare states, have shaped justifications for and methods of state punishment and social control (e.g. Wacquant, 2009). However, the forces at work in these master narratives manifest differently at the national and jurisdictional levels. Thus, the punitive patterns and trajectories they shape in each are distinct and culturally embedded (Melossi, 2001), resulting in different penal policies, practices and outcomes. Two articles (by Karstedt and Snacken) in this special issue offer theoretical analyses of penal developments at the international level, while four focus on the changing penal contexts in four countries: the United States, Canada, Sweden and Australia. A comparison of their imprisonment rates per 100,000 of the population – which range from 707 (USA), to 114 (Canada), to 57 (Sweden) – presents widely different impressions of each country. A similarly divergent and variable pattern can be observed among the four selected Australian jurisdictions whose

Imprisonment and Political Equality

In this paper I outline the logical relations between political equality and the practice of imprisonment by the state. I identify the very limited conditions in which the citizen-rulers of a democratic state give it the authority to imprison them, and the still more limited conditions in which a democratic state has good reason to imprison its citizen-rulers. I further argue that this reason to imprison becomes less significant the more that formal political equality leads to substantive equality of political influence among citizens. The more democratic is the state, the more it will substitute restorative justice methods for imprisonment. I demonstrate that this democratic theory of punishment can explain recent huge rises in imprisonment rates in the US and the UK as one consequence of the retreat of political equality in those countries over the same period. I conclude by considering in turn the position of non-citizens in a penal regime of political equality; the persistent social injustice of democratic state punishment; and the inherent abolitionism of a penal theory based on a serious commitment to political equality.