Legal Consequences of Crime: Understanding Punishment
Concept of Grief
Grief, in a legal context, refers to the main legal consequence of a crime. The basic elements that define a penalty are:
- Responding to a wrongful act: This involves the infringement of a primary rule of behavior.
- A bad: Considered an asset to prevent repeat offenses, it is also an intrusion on personal rights, involving deprivation or restriction of legal rights. Socially, it must be a lesser evil, adhering to the principle of proportionality.
- Personal: The penalty applies only to the offender, not a third party, although there are debates about penalties affecting offenders’ families.
- Imposed by the State: The sentence must be imposed by the authority, particularly by the courts of criminal justice, following due legal procedure.
These features distinguish penalties from other measures:
- Article 34.1 of the Criminal Code (CP) states that arrests, detentions, and other interim measures are not punishments.
- Administrative penalties (Art. 34.2 CP) are not punishments as they are not imposed for crimes by a criminal court but by governmental or disciplinary authority.
- Deprivation of rights and remedial sanctions under civil or administrative laws (Art. 34.3 CP) are not punishments.
In essence, a penalty is an evil, a deprivation or restriction of legal rights imposed by a competent court on a person who has committed a crime, according to criminal procedural law.
Basis of the Sentence
Guilt is the foundation of a sentence. It implies that punishment is deserved because the offender could have chosen not to commit the wrongful act and is therefore responsible. The principle is: no punishment without guilt. Some argue against guilt as the sole foundation, citing determinism, but the majority view holds guilt as the primary justification for punishment. Another consideration is the safety hazard posed by the offender.
Purposes of Punishment
- Special Prevention: Aims to prevent the subject from re-offending.
- Resocialization: Seeks to positively adapt and reintegrate the offender into society.
- Inoculation: Aims to make the offender safe while serving their sentence.
- Intimidation: Aims to deter the offender from re-offending.
- General Prevention: Aims to prevent anyone from committing a similar offense.
- Coercion/Intimidation: Operates as a psychological deterrent.
- Reaffirmation of the Rule: Serves to reinforce the legal system and the validity of the infringed rule.
- Compensation: Serves to redress the evil done, looking to the past, unlike prevention, which looks to the future.
Most discussions about punishment versus prevention are based on the concept of retribution.
Theories of Retribution (Absolute Theories)
These theories, linked to Kant and Hegel, focus on the crime committed rather than future prevention.
Kant
Kant’s radical retributive theory posits that punishment is a categorical imperative, an end in itself, not a means to other purposes. It serves to restore and preserve justice, understood as an inviolable principle. Punishment should be proportionate to the crime, reflecting the Law of Talion. The basis and extent of punishment must relate to the crime committed, not to deterring others.
Hegel
Hegel’s theory focuses on maintaining the validity of the law. Crime negates the general will expressed in law, and punishment negates this negation, reaffirming the law. This reaffirmation can be interpreted as positive general prevention, not intimidation.
Other Retributive Theories
Other retributive theories have religious influences, such as the theory of expiration.
The key difference between Kant and Hegel is that Kant appeals to justice (ethics), while Hegel appeals to the reaffirmation of the law (legal content).