Prison sentences in the 21st century, an unavoidable route? –

By Gonzalo Quintero Olivares

Current occasions have led (once more) to the media the controversy on the function of the jail as a response within the 21st century to conduct thought-about prison. Particularly, the imprisonment of rapper Hasél and the political invocation of the standing of “prisoner” that impacts a gaggle of Catalan politicians, has renewed the controversy on the operate of the jail sentence utilized to topics who, all the time in response to the discourse that some proceed, they’ve dedicated acts that solely transfer on the planet of concepts and phrases.

I’m not going to enter, and never as a result of it isn’t essential, in what must be prison or not, nor will I cease to interrupt down the idea of crime “of opinion” or of “criminalized concepts”, which is to be attributed to these and different instances inappropriately, since it’s true that ideas usually are not punishable (Nobody suffers the punishment of the ideas of the), however it’s also a crass error to imagine that the whole lot that’s finished with the phrase doesn’t transcend respectable thought, even when one disagrees with its content material, as a result of with the phrase you may threaten, slander, deceive, betray, harm, humiliate, and so many different actions that the regulation values, and, for a similar purpose, it isn’t potential to say that The phrases fly, in different phrases, the phrases are carried by the wind.

The worrying and critical difficulty is just not solely the one which refers back to the criminalization of outrages to non secular sentiments, or to the Crown, or harangues and proclamations geared toward secession, which, after all, it’s, and I’ve handled that. on different events, however on one other, totally different and as or extra critical than that, and that, going additional, is specified by asking what’s the operate and utility of the jail as a response of regulation.

To discard, as absurd, the “expiationist” reply, summarized within the phrase “who pays it”, which, as well as, could be a justification of the penalty, however not that this was essentially the jail. There, after all, some would enter saying that the whole lot that isn’t depriving of liberty doesn’t serve to “educate by horrifying”, which is the crudest strategy to describe the final prevention operate attributed to prison regulation. Jail, jail, gayola, trullo, trena, chirona, galera, or no matter you need to name it, has been a punishment that for a very long time has been culturally accepted because the “pure response”, and there was even time, and it’s comprehensible, that the regulated jail was seen as a humanitarian advance in comparison with the dying sentences, flogging, ring and different horrors.

For a very long time the concept has prevailed that within the face of the fearsomeness of the prison, the one manner that society has to defend itself is jail, however, if so, it’s inevitable to marvel concerning the that means of jail for topics who usually are not harmful , if by hazard it alludes to the indemnity and peace of different individuals. However assuming that the primary and maybe solely operate of the jail is to stop the dangerousness of sure topics results in critical doubts concerning the reasonableness of utilizing this response for topics who don’t pose any threat to indemnity, well being and liberty and different rights. of others. It’s straightforward to return to an apparently “clear” conclusion: jail is a violent response that’s justified solely within the face of violence,And subsequently, non-violent actions shouldn’t be repressed with a punishment as violent as jail.

This method for and towards the jail has the advantage of simplicity, and in that case it could be essential to observe Ockham’s razor and elevate it to a definitive rationalization. The issue is that it overlooks the appreciable problem concerned in deciding what are the behaviors that deserve the qualification of “violent”, which explains why it has not been accepted as a “fundamental thought”.

There shall be no scarcity of people that will say that staying in jail additionally prevents violent and non-violent crimes from being dedicated throughout that point, and don’t forget that within the legitimation of the jail, “safety” is invoked, to start with, with no consideration of residents as a complete, and, secondly, that there’s nothing extra unjust than treating the unequal equally, that’s, depriving liberty each harmful and non-dangerous. It would then be mentioned that the jail sentence for the non-dangerous is “retribution”, whereas for the harmful it’s each “retribution and prevention” within the face of the hazard that it embodies, solely that this double rationalization of the operate of the penalty is debatable. Along with the truth that the thesis that jail is the pure retribution can also be insufferable, since there could also be different kinds of punishments which might be additionally justified as retribution in entire or partially, and don’t include deprivation of liberty.

In sum, “insecurity” might solely justify part of the prison responses or, in the event you favor, when the reply to many crimes consists of deprivation of liberty, it can’t be justified in insecurity. In fact, it may be protected by legality (it’s finished as a result of the regulation orders it) however that isn’t a vital reflection, or, brazenly, to say that it’s about atonement or public vindictment, however, in that case, the coherent factor shall be overlook concerning the fashionable theories of punishment within the social state of regulation, diminished to mere lip service.

Going to a different side of the topic, only a look on the books on prison regulation, even these particularly dedicated to the idea of punishment, to confirm that, on the one hand, there are a lot of censures of the “extra presence of prison regulation”, and , on the opposite, there are hardly any substantive reflections on what are the behaviors that they essentially require the intervention of prison regulation and, moreover, jail as a response.

Is it cheap to take care of the contradiction of denouncing extra prison regulation with out stating what’s “left over”? It’s mentioned that, nevertheless it’s a nonsenseThat, if the jail sentence had been reserved for violent crimes, prison regulation would virtually disappear, diminished to a really small variety of offenses. That is false, and it means decreasing the prison regulation to crimes punishable by imprisonment, excluding all different penalties.

Alternatively, there’s a theoretical harmony (through which Spanish legislators don’t, by the way in which, take part) through which it’s essential to search for alternate options to jail. Additionally it is mentioned that there could also be satisfactory options to the pursuits of the injured events, comparable to conciliation or reparation, which might make it potential to resign from jail, however that doesn’t diminish the exceptionality of those different options, which, however, are mistaken. extreme concern for the “injured current” relegating the potential “injured future” to the background. However that’s one other difficulty.

When the controversy on the discount of recourse to jail is opened, the worry inevitably arises of upsetting the emotions of the citizenry, and, as quickly as it’s investigated on this area, it’s detected that for many individuals it could be incomprehensible that jail was not the satisfactory punishment for main monetary scandals, huge fraud or critical instances of public corruption, even when they aren’t violent occasions. And it could be added, with all safety, a extreme criticism of a social nature, since it’s straightforward to confirm that the violent topics, for probably the most half, belong to the world of marginality or to the decrease social strata economically and culturally. The harshest prison regulation would thus be reserved for the marginalized and the poor, and wouldn’t attain the nice cabinets. However such “clear reasoning” results in excessive conclusions: to jail, excluding very violent crimes, should go all or nobody.

Therefore the concept that jail is violence that responds to violence, to which I’ve referred earlier than, is mistaken, because it begins from a false premise, since it isn’t a “talionaire” response, typical solely of atonementist retributionism, which may thus legitimize the dying penalty or corporal punishment. The jail sentence can’t be seen solely as a “violent response to the violent”, since it’s also a punishment for significantly illegal conduct. Between the prison motion and the consequence there may be not nor does there need to be “homogeneity”, one other factor is that it’s potential to configure totally different punishments.

For too a few years we’ve been saying that jail is a foul treatment, that it exhibits the shortcoming to search out higher options. However the worst factor is that prison attorneys have been repeating for greater than fifty years what was already mentioned on the time of the 1966 German Different Challenge: that the penalty was a “bitter want in a society of imperfect beings comparable to males”. However past repeating that already hackneyed phrase, resignation reigns, even supposing some progress has been made: abolition of the dying penalty within the EU, tempering of the harshness of sentences (though this has been little seen in Spain ), small advances in alternate options to imprisonment, opening, though very restricted, to conciliation).

Sadly, the whole lot factors to the truth that prisons shall be, for a very long time, the queens of the punitive system, and legislators, particularly Spaniards, don’t present particular need for issues to alter, probably, will probably be mentioned, for worry of social rejection and to the demagogic use that different political events will make towards any step geared toward decreasing the jail. And, make no mistake, the prison difficulty doesn’t compensate for an eventual lack of votes. We might even confirm that not even the restoration of the dying penalty would have considerably damaging results on the citizens.

That isn’t why it’s essential to surrender the obligation to struggle for the advance of prison regulation. If we imagine {that a} progressive waiver of the jail sentence is critical, we must always vindicate the concept that this discount has to start sooner or later and for some group of crimes.. Clearly, probably the most cheap factor to do is to struggle to exclude non-violent types of crime from the jail sentence, at the very least when the fabric or patrimonial harm has not been extreme.

It is not a lot, however it could be one thing. In parallel there may be the obligation to suggest different types, which till now have been little explored, and I’m referring to the broad area of interdictions and disqualifications and suspensions of rights. It appears little, however it isn’t like that, and, above all, it’s crucial to start out strolling sooner or later, even when we’re conscious that in the whole lot that impacts the modernization of prison regulation, the comfy and politically prudent factor is to do nothing no downside.

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