Friday, January 22, 2010

Practical Reforms and Judicial Reforms about Criminal Law

The data of criminal anthropology and statistics, and the positive theory of responsibility which flows from them, although they have been systematised only by the positive school, are nevertheless too constantly in evidence not to have made their way into courts and parliaments.
I have already spoken of penal jurisprudence in its relations with criminal sociology, and may now cite a few examples of the more or less direct and avowed influence of the new data on penal legislation.
The legislators of t-day, vaguely impressed by statistical and biological, ethnographical and anthropological data, and still imbued with the old prejudice of social and political artificiality, were at first hurried into a regular mania for legislation, under which every newly observed social phenomenon seemed to demand a special law, regulation, or article in the penal code. Then, as Spence has said in one of his most brilliant essays, the citizens finds himself in an inextricable network of laws, decrees, regulations and codes, which surround him, support him, fetter and bind him, even before his birth and after his death. For those whom M. Bordier calls the gardeners and trussmakers of society, forgetting the natural character of social phenomenon, picture society as so much paste, to which the cook may give any form he pleases, whether pie-crust, dumpling, or tart.
Hence we see on all sides, side by side with dogma in the classical sciences of law, economy, and politics, empiricism in the laws themselves. And that is why the practical defects and constant impotence of repression in penal justice are the most eloquent arguments of the experimental school, which extends and strengthens its own theoretical inductions by the practical reforms which it suggests.
A first example of the influence more directly exercised by the new ideas in penal legislation is furnished by the proposal already realised in the penal laws of Holland, Italy &c, of two parallel systems of punishment by detention-one for the graver and more dangerous crimes, and the other, “simple detention,” or custodia honesta (“as a first-class misdemeanant”), for contraventions, involuntary offences, and crimes not inspired by the baser passions.
Similarly, the enumeration contained in certain codes, as in Spain, and in the old Mancini draft of a penal code in Italy, of the main aggravating and extenuating circumstances common to all crimes and offences, such as the antecedents of the accused, venial or inexcusable passion, repentance and confession of a crime, extent of injury or the like, is only an elementary and empiric form of the biological and psychological classification of criminals.
Thus also the foundation of asylums for the detention of lunatic criminals, in spite of their being acquitted of moral responsibility; the more and more vigorous, but often too empirical measures against the progressive increase of recidivism; the proposed repressive measures as alternatives to short terms of detention; the recreation against the exaggerations of cellular confinement, which I regard as one of the aberrations of the nineteenth century, are all manifest proofs of the more or less avowed and logical influence of the data of criminal biology and sociology on contemporary penal legislation.
These practical reforms, which, when grafted on the old trunk of the classical theories of crime and punishment, are mere arbitrary and misplaced expedients, really represent, when they are logically coordinated and completed, the new system of social defence against crime, which is based on the scientific data and inductions of the positive school, and which it is therefore necessary for us to trace out from its foundations.
In the first place, whilst the positive theories largely reduce the practical importance of the penal code, yet they do more to increase the importance of the rules of penal procedure, which are intended to give practical and daily effect to penal measures, for the defence of society against criminals. For, as I maintained in the Italian Parliament, if the penal code is a code for evil-doers that of penal procedure is a code for honest people, who are placed on their trial but not yet found guilty.
This is all the more true because, if it is possible to have penal codes whose machinery of psychological coercion is planted on a platonic platform of penitentiary systems written out fair in their symmetrical clauses, but still non-existent, as is the case in Italy, this is not possible in regard to penal procedure. The regulations of the code of “instruction” must of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observance of these articles of the penal code-which nevertheless have cost so many academic discussions as to the best penitentiary system: “Auburn,” “Philadelphian,” “Irish” or “progressive.” In the organisation of justice, on the other hand, every legal regulation has its immediate application, and therefore reforms of procedure produce immediate and visible results.
It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the certitude and promptitude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure.
Passing over special and technical reforms which even the classical experts in crime demand in the systems of procedure, and often rather on behalf of the criminals than on behalf of society, we may connect the positive innovations in judicial procedure with these two general principles: - (1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the impersonal applicability of an article in the penal code to crime under consideration; but the application of the law which is most appropriate to the perpetrator of the crime, according to his more or less antisocial characteristics, both physiological and psychological.
From Beccaria onward, penal law developed by reaction against the excessive and arbitrary severity of the middle Ages – a reaction which led to a progressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against the medieval abuses of the inquisitorial system, in the sense of a progressive increase of individual guarantees against the domination of society.
As we considered it necessary in the interests of social self-defence, in the case of criminal law, to combat the individualist excesses of the classical school, so in regard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium between individual and social rights, which has been disturbed by the many exaggerations of the classical theories, as well will now proceed to show by a few examples.
The presumption of innocence, and therewith the more general rule, “in dubio pro reo,” is certainly based on an actual truth, and is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared with honest people; and we must consequently regard every man who is placed on his trial as innocent until the contrary has been proved.
But when proof to the contrary is evident, as, for instance, in the case of a flagrant crime, or of confession confirmed by other elements in the trial, it seems fit that the presumption should cease in view of absolute fact; and especially when we have to do with habitual criminals.
Even the criminals of this class whom I have questioned recognise a presumption of the opposite kind. “They have convicted me”, said a habitual thief, “because they knew I might have done it, without any proof; and they were in the right. You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered”. And the ironical smile of several of these prisoners, condemned on circumstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. This might be good for an occasional criminal, or a criminal of passion, but would be absurd and dangerous for habitual criminals and old offenders.
The exaggerations of the presumption “in dubio pro reo” are due to a sort of mummification and degeneracy of the legal maxims, whereby propositions based upon observation and generalisation from existing facts continue in force and are mechanically applied after the facts have changed or ceased to exist.
What reason can there be for extending provisional freedom, pending an appeal, to one who has already been found guilty and liable to punishment for a crime or offence, under sentence of a court of first instance? To presume the innocence of every one during the first trial is reasonable; but to persist in a presumption which has been destroyed by facts, after a first condemnation, would be incomprehensible if it were not a manifestly exaggerated outcome of classical and individualist theories, which can only see a “victim of authority” in every accused person, and in every condemned person also.
Another point is that of acquittal in case of equality of votes, especially where born and habitual criminals are concerned. I think it would be much more reasonable to restore the verdict of “not proven,” which the Romans admitted under the form of “non liquet,” as an alternative to “absolvo” and “condemno,” and which may be delivered by juries in Scotland. Every one who has been put on his trial is entitled to have his innocence declared, if it has been actually proved. But if the proofs remain incomplete, his only right is not to be condemned, since his culpability has not been proved. But it is not the duty of society to declare him absolutely innocent, when suspicious circumstances remain. In this case the only logical and just verdict is one of “not proven.” Such a verdict would obliterate the shadow of doubt which rests on persons who have been acquitted, by reason of the identical verdicts in cases of proved innocence and inadequacy of proof, and on the other hand it would avoid the tendency to compromise, under which judges and juries, in place of acquitting when the proof is insufficient, sometimes prefer to convict, but make the punishment lighter.

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