Security Measures in Criminal Law: Origins, Rationale, and Differences with Penalties
Lesson 4: Security Measures
Origins of Security Measures
Security measures, a relatively recent development in criminal law compared to penalties, gained prominence in the late 19th century with the rise of the Italian Positivist School. This shift arose from the realization that traditional penalties were inadequate in addressing the issue of criminal dangerousness.
Theorists like Ferri, challenging the prevailing Classical School’s emphasis on free will and equipotentiality (the idea that all individuals are equal in their capacity for choice), argued that factors beyond an individual’s control could contribute to criminal behavior.
1. Classical School vs. Positive School
The Classical School, rooted in the concept of free will, viewed punishment as a just response to a crime. In contrast, the Positive School, emphasizing determinism, posited that biological, psychological, and environmental factors could predispose individuals to criminal behavior.
Cesare Lombroso, a key figure in the Positive School, proposed the theory of the “born criminal,” suggesting that certain individuals were inherently predisposed to criminality due to atavistic traits. While this theory has been largely discredited, it highlights the Positive School’s focus on factors beyond free will.
2. Individualized Treatment and Environmental Factors
Kretschmer, a German scholar, linked physical characteristics to psychological predispositions, advocating for individualized treatment based on an individual’s unique profile. Ferri, on the other hand, emphasized the role of environmental factors, arguing that unfavorable social conditions could contribute to criminal behavior. He proposed replacing traditional criminal law with a system focused on individualized treatment and rehabilitation.
Essential Differences Between Penalties and Security Measures
Several key distinctions exist between penalties and security measures:
1. Basis for Imposition
- Penalties: Imposed based on guilt, signifying a finding of criminal responsibility.
- Security Measures: Imposed based on the degree of dangerousness posed by an individual.
2. Purpose
- Penalties: Aim to retribute for the crime committed.
- Security Measures: Focus on special prevention, aiming to prevent future crimes by the individual.
3. Timing
- Penalties: Postdelictual, imposed after a crime has been committed.
- Security Measures: Can be predelictual, imposed on individuals deemed dangerous even if they haven’t committed a crime.
4. Consequences
- Penalties: Primarily involve the deprivation of legal rights as a consequence of the crime.
- Security Measures: While they may involve deprivation of rights, the focus is on the application of treatment to address the individual’s dangerousness.
5. Modifiability
- Penalties: Generally not modifiable once imposed.
- Security Measures: Can be modified or terminated based on the individual’s progress and the perceived level of dangerousness.
6. Applicability
- Penalties: Applicable to individuals deemed fully responsible for their actions.
- Security Measures: Can be applied to individuals with diminished capacity, such as those with mental illness or repeat offenders.
Rationale for Security Measures
: There are two conflicting doctrinal positions: the utilitarian (less demanding) and claiming an ethical-social support also in security measures. * 1.The ethical-social measures Welzel, occurs in the thirties. Welzel is also known as the father of ethical theory of punishment. Argues that the foundation of the security measure is an ethical-social that is developed around the concept of social defense. We must find the reasons and based on two basic principles: a. Start the generic goes the absolute lack of capacity. Serves to justify the application of the security measure of state offenders, ie, repeat or habitual offenders. Legitimizing the restriction of freedom of the subject by the corresponding lack of freedom of the individual (moral capacity, self-determination …) and can only participate in community life if you have the ability to self-determination. Thus, the freedom to participate or external freedom, should be restricted when internal capacity is disminuida.No be an absolute limit their freedom abroad, but must seek a balance between external and internal freedom, and as the subject expresses lack of inner freedom, the State should give greater freedom. b. Principle special relation to the mentally ill have only a diminished mental capacity. This would apply to drug addicts, alcoholics … to which the State has the duty to heal and help. This is a specific social ethical foundation, the State is obliged to intervene certain limits, otherwise it could lead to the use of the subject.
Here come into play the principle that the freedom that the Constitution grants every citizen is a freedom tied to the community, a Community freedom, * 2. Schmidhauser utilitarian theory: it is so necessary to punish (penalty) and limit or combat dangerousness of the subject (security measures), so that the foundation of the security measure is to use a tool to eliminate the danger of the subject. However, he also said that their use is necessary for living and we must keep to dangerous attacks, security measures are unimportant. To Schmidhauser is a moral limit both the extent of security as to the minimum penalty. In this search the nucleus is given by the principle of proportionality, so that there will never be overcome by applying the measure the degree of dangerousness of the subject and when it disappears and is no longer necessary to continue to limit their freedom.