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Beware of Punishment: On the Utility and Futility of Criminal Law.

The Nordic countries have long had a reputation for humane penal policies and modest levels of imprisonment. Formerly, they also were perceived as being leaders in rehabilitatively based penal policies. However, in recent decades (at least, in Finland and Sweden), there has been a marked move away from treatment and predictively orientated sentencing, and toward an emphasis on proportionality of sentence. Finland, in 1976, adopted a statute which made the seriousness of the conviction offence the primary criterion of sentence. Sweden followed suit in 1988, with a statute which also gives chief emphasis to proportionality. In its general thrust, the Swedish law resembles the earlier Finnish statute -- and also the approach of England's Criminal justice Act of 1991; however, its details are more fully and carefully spelled out.

This scheme reflected the collaborative effort by a number of leading Swedish penologists who, together with other Nordic colleagues, had developed a considerable literature on proportionality and its aims in the late 1970s and early 1980s. A noteworthy product of this collaboration was a 1980 volume of essays entitled Straff och rattfardighet ('Punishment and justice'). In the present volume, the contributors to the 1980 volume (or most of them), return to examine recent developments in penal policy. In considerable part, as its title suggests, the book is a warning, directed against a variety of ways of thinking, trends and pressures that could make Nordic criminal policy less sensible and humane.

In the first chapter of the volume, Nils Jareborg (Sweden's leading criminal law theorist, teaching at Uppsala University) sketches a wider conception of criminal law that reflects the aims of this group of reformer -- one which he entitles a 'defensive' criminal law. This is a liberal conception, according to which the criminal law should be employed only as a last resort against the more clearly injurious kinds of conduct. Prohibitions should ordinarily address infringements of definable rights and interests of persons, and should include express culpability requirements -- so that a crime involves an act of wrongdoing. With this limited scope of punishable conduct, punishment clearly will involve blaming, and the quantum of punishment can thus be made commensurate with the gravity of criminal conduct. Provided that sanctions are kept at moderate levels (which Jareborg also strongly urges), such a criminal law is one which the citizen need not fear. This, indeed, would be precisely the law's role: to protect the citizen not only against harm at the hands of other persons, but also to protect against excessive intrusions of authority. Jareborg concedes that criminal law in a modern society cannot be restricted solely to actual interest infringements: to some extent, risk-taking will also have to be penalized, and harms against collectivities addressed. But on the 'defensive' paradigm, such steps should be taken cautiously: where risk-taking is penalized, for example, the character of the risk should be made explicit, as should the required extent of the actor's responsibility for that risk.

Against this model of a 'defensive' criminal law, Jareborg contrasts an 'offensive' model -- which he fears is becoming more influential, in the Nordic countries as well as elsewhere. Characteristic of this model is a much easier resort to criminalization of conduct deemed risky or socially indesirable: a watering-down of legal culpability requirements; escalation of penalties; and reduced concern for proportionality of sanction. The criminal law, is treated as an offensive weapon against undesired conduct and against social undesirables. As, such, its capacity to protect individuals against intrusions from authority is much reduced.

Jareborg's advocacy of a defensive model and his warnings against an offensive criminal law have much in common with the recent writings of another continental liberal jurist, Winfried Hassemer -- who, writing in the German context, also warns against extension of the scope of the criminal law beyond the definable Rechtsguter of individuals, and an undue preoccupation with risk and with political concerns.

As in the UK and elsewhere in Europe, criminal offenders in the Nordic countries tend increasingly to be out of work and to suffer from multiple social deprivations. There has also been a notable skewing of offence patterns -- with some groups of individuals having much higher than average recidivism rates. This has created the temptation, against which the Danish criminologist Britta Kyvsgaard warns in her essay, to resort to incapacitative strategies, involving '... incarcerating offenders with long and extensive criminal careers, who typically are identical with offenders with multiple and severe social problems' (p. 134).

There has been considerable incapacitation research in the Nordic countries during the past decade and a half, and Kyvsgaard provides a careful review of it. The results comport with those of English and American research: that notwithstanding the skewing of offence patterns and the existence of groups of offenders with high recidivism rates, the potential preventative payoff of incapacitation strategies is unimpressive. Neither across-the-board increases in duration of confinement, nor increases focused on supposed high-risk individuals yield more than quite modest crime-rate reductions, and even these can be accomplished only by large (and costly) increases in prison populations. Incapacitation strategies will thus make the system more prodigal of imprisonment (and if attempted selectively, will sacrifice proportionality), without significant enhancement of public safety. By and large, Nordic penologists have come to understand this: after a brief flurry of interest in the mid-80s in incapacitation as a crime-reduction tool, enthusiasm for such strategies has waned, without having had a great deal of impact on legislation. Finland's and Sweden's proportionality-based sentencing statutes, for example, have remained largely unchanged, without addition of significant new powers to suit the sentence to the offender's supposed degree of dangerousness.

With all its practical limitations and ethical discomforts, incapacitation is at least a substantive penal strategy: because it is concerned with actually reducing crime, it can be challenged by evidence concerning limited crime-preventive payoff, and excessive potential costs. Unfortunately, other versions of 'offensive' criminal law seem to be more concerned with symbolism than with actual results -- with taking a strong stand against a perceived danger. An example is found in the area of drug policy, examined in an essay by P. O. Traskman.

Until 1970, Traskman points out, drug penalties in the Nordic countries were modest; since then, however, there have been steady increases, so that at present sanction levels for drugs are strikingly higher than the levels of punitiveness prevailing for other kinds of offences. In Sweden, for example, prison terms of over a year are considered severe, and ordinarily are reserved for crimes of actual or threatened violence and for large thefts and frauds; such terms, however, are regularly in use for commonplace acts of drug dealing. Norway has even tougher policies; with maximum sentences running up to 21 years (the same maximum penalty as for murder).

Beyond its severity, Traskman points out, Scandinavian drug-crime policy displays other features of the offensive' model of criminal law: reduced procedural safeguards, watered-down culpability requirements, and disregard of proportionality requirements. Also troublesome is the policy's over-ambitiousness of aim: supporters of present drug policies speak of making the Nordic countries a 'drug-free zone' -- whereas what serious penologist could suggest that the region be made 'burglary-free' or 'assault-free'? The need for avoiding over-ambitious crime-prevention goals is also emphasized in another essay, by the Finnish penologist, Patrik Tornudd.

During the 70s and 80s, drug policy constituted a departure from the Nordic norm, and the region's tough drug sanctions seemed to reflect the belief that drugs were a special menace. More recently, however, something still more disturbing has been emerging: the conscious use of penalty escalation as a political tool. It is this politicization of criminal policy which Dag Victor (a former Swedish justice Ministry official, now a senior appellate judge) describes and warns against.

Sweden's 1988 sentencing law was enacted after extensive debate among criminologists and policymakers, but with little political partisanship. This, Victor points out, was characteristic of the time: indeed, the responsible legislative committee, the Parliamentary Standing Committee on Justice, took pride in its consensus approach and in the infrequency of its dissenting reports. In the 1991 elections, however, the country's Moderate (i.e. conservative) Party took a vocal populist stance on crime -- led by the Party's slogan that 'they [criminals] should be kept [locked] inside, so that you [the good citizens] can venture outside'. When the conservative-led coalition won that year, the new Justice Minister released a widely disseminated pamphlet decrying Social Democratic 'leniency' and calling for tougher penal policies.

Deliberations in the Standing Committee on justice reflected this changed political atmosphere: Victor notes a marked increase in the numbers of dissents filed to Committee reports -- with some of these having a markedly shrill tone. Nor was this shift for public consumption only: within the Justice Ministry itself, the Minister then in office tended to cut policy discussions short, and to treat penal issues as being a matter of satisfying popular expectations. However, only modest changes were enacted: mainly, a tightening of the presumption of imprisonment for drink-driving, and limited postponement of parole eligibility. (In another essay, the Swedish criminologist Henrik Tham asserts that the conservative-coalition government-favoured proportionate sentencing, and sought to use it to increase penalty levels. However, he cites no supporting evidence -- and the claim seems inconsistent with the Justice Minister's advocacy of deterrent and incapacitative strategies, and of giving more weight to offenders' prior criminal histories.)

With the re-election of the Social Democrats in 1994, law-and-order themes have ebbed somewhat in popular debate. The election itself was chiefly over economic issues (not surprisingly, given Sweden's fiscal problems of the time), and the new government has maintained a low profile on criminal-justice issues. It is reassuring that Sweden's Social Democrats have not attempted to emulate Mr Jack Straw's tactic of trying to outbid the conservatives on toughness. Sadly, however, such a tactic seems to be emerging in Denmark, where the present (Social Democratic) government has been moving in recent months toward what are, by that country's standards, strident postures of punitiveness. The law-and-order stance of which Dag Victor warns has by no means disappeared in the Nordic countries.

The volume also contains a number of other interesting essays, which space does not permit me to examine. Henrik Tham's paper contains an informative historical account of Swedish social-democratic thinking on crime issues. A thoughtful paper by the Danish criminal-law scholar, Vagn Greve, urges a sceptical stance toward undue expansion of the European Union's criminal jurisdiction. The one essay that is quite different in tone and substance is that by Nils Christie. He reiterates his well-known advocacy for replacing criminal law by infoimal negotiated approaches; has (by plain implication) little patience with Jareborg's distinction between 'defensive' and 'offensive' criminal law; and largely dismisses proportionality (indeed, he seems to lump this idea together with American-style numerical sentencing guidelines, and mandatory minimums).

This collection will make worthwhile reading for a British criminologist. Many of the themes of debate will be ones which he or she will recognize, for example, the role of proportionality in sentencing policy, the utility and justice (or lack thereon of incapacitation, the rationality of drug Policies, and the impact of law-and-order politics. However, the emphasis in the thinking (and in actual policy making) is sufficiently different to provide interesting contrasts to Britain's situation. Scandinavian criminal policy may be threatened today by an emerging populism, but it still possesses a degree of humaneness and rationality which criminologists elsewhere might well envy.
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Author:Hirsch, Andrew von
Publication:British Journal of Criminology
Article Type:Book Review
Date:Sep 22, 1997
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