Theories of Punishment and Their Application in the Spanish Penal Code
Essence of Punishment
It consists of the deprivation of legal rights that may infringe on individual property or rights. The type of punishment determines the legal restriction. The security measure will also be determined by law (abstract penalty), from which calculations are made to determine a specific penalty for the subject. All penalties in the Penal Code are abstract sentences (measurable). The abstract sentence is applied to the perpetrator of a crime committed without aggravating or mitigating circumstances. The penalty, in terms of content, is the restriction of rights and is applied because the convicted subject has committed a crime. It is an evil added to another evil. The penalty serves both to compensate for the damage done and to give the suffering subject the opportunity to see the offender punished. Its application is justified on moral grounds for this opportunity given to the one who has infringed the right of someone (as a rule). This retrieves the subject as a moral being, which in turn recovers the subject matter of morality. On the other hand, it is possible to understand the sentence as a way to control the social order, as a means of compelling the State to impose order, so the existence of punishment is necessary.
Late Reflections on Punishment
This is when we ask why we punish: what is intended by the imposition of the sanction. Sometimes, one of the purposes of the sentence is considered the essence of punishment. Basically, there are two criteria that have managed to develop so-called theories of punishment: compensation criteria and prevention criteria. These theories revolve around the objective pursued by the imposition of the sanction. In primitive law and up to the 20th century, compensation for damage has been the main focus, later complemented by the criterion of prevention.
1. End Remuneration or Compensation:
This approach looks at the past, the damage, and is based on the idea that it is possible to compensate for the damage by determining the penalty based on the degree of culpability of the subject. When we can prove that the person who committed the criminal act would, in fact, commit it and, therefore, cause such damage, the criteria will be applied to pay a penalty proportionate to the degree of culpability of the subject. The Spanish Penal Code, since it saves a rationalization of punishment, has increasingly been tempering the responsibility of the subject to guilt, and all penal codes from the 19th century onwards have sought to establish proportionality between the subject’s guilt and the penalty imposed.
2. End Preventive or Preventative:
This approach takes a totally different look, focusing on the future and the idea that crime can be prevented through the threat of a sanction. The subject only needs to know the possibility of a penalty for that action to avoid it.
Prevention, rather than relying on guilt, is based on danger. When developing the standard of prevention, it is worth handling this concept to prevent crimes before they are committed. Crime cannot be prevented entirely, so prevention cannot totally eliminate criminal behavior. When speaking of prevention, we have to be realistic and not talk in absolute terms, keeping crime within the parameters of coexistence. Durkheim believes that crime is a constant that will also occur in any healthy society, so that if one form of crime disappears, another will appear.
Function of Punishment in the Spanish Positive Order
From 1848, the Spanish Penal Code began to collect moderate theories that we call eclectic, influenced by Rossi and Pacheco. From that moment on, we can say that all Spanish codes start, first of all, with retributivism, trying to reflect this by giving the death penalty justly, provided (for example, the guilty principal is punished more than the accomplice, the consummated crime more than the attempted crime). All codes also include specific rules for determining the penalty, to which the court adheres, leaving very little discretion. Within these codes, there are also institutions of prevention, targeting general criteria on the one hand and special criteria on the other.
a. General Prevention:
This is basically intimidation. It is seen in progressively increasing the length of sentences. It is also noted in penalties for certain systems that are determined to be too high in relation to the crime (theft, injury, drug trafficking, terrorism, etc.). It also gives the judge little discretion in determining the penalty they deem appropriate.
b. Special Prevention:
This approach looks at institutions such as the suspension of sentences of less than two years for first offenders, the substitution of sentences for others to allow greater flexibility in the death of the subject, the possibility of granting parole during the execution of the sentence, etc. While serving, it establishes a gradual classification system with a more benign performance. We can say that today, in the Criminal Code, traditional purposes of punishment are handled, and Roxin’s theory is applied so that they are complied with in different parts of the sentencing process. At the time of the injunction, general prevention and special prevention are considered, and in the execution phase, special prevention is prioritized, since both the Constitution and the General Penitentiary Law are oriented toward it. Lately, there has been a tendency toward negative general prevention, based on intimidation. However, this does not seem to be the best way, as it is hardly the best mechanism for prevention (as seen in the example of traffic offenses).