In recent years, there has been a phenomenon of elevating the severity of punishment as the main solution to solve crime. This tendency is particularly strong in European member states, with Greece being the most recent country to amend its Penal Code, imposing more severe penalties in the name of crime deterrence. The issue gains particular interest in the US as well, where in some states, the death penalty is still in place. The discourse has gained prominence within legal circles, and therefore, punitive measures shall be reevaluated in terms of their effectiveness.
This article seeks to contribute to this ongoing conversation by critically examining the prevailing trends in punitive systems, with a focus on the European context, exemplified by the recent Criminal Code amendment in Greece, and the enduring system in the United States. The analysis is structured around the multifaceted aspects of deterrence, rehabilitation, and ethical considerations inherent in the application of harsher penalties.
I. THE IMPORTANCE OF PERCEIVED CERTAINTY IN APPREHENSION:
Strengthening a criminal’s perception of the certainty of being caught has to be highlighted as the best way to deter crime. As a rule, criminals ignore or do not have the capacity to know the specific details of the penal articles nor their severity. The only thing they care about when deciding about committing a crime is the certainty of their arrest. According to studies , this deterrence is more effective than simply escalating the severity of punishment.
The behavior of a person who intends to commit a crime will be influenced and conditioned if an atmosphere of safety and vigilance is created, which also increases the likelihood of arrest or being seen in the criminal action, such as lighting, security measures, and surveillance.
II. LEGAL AWARENESS, FAIR TREATMENT AND SOCIAL PREVENTION:
Addressing the issue of legal awareness means that a convict cannot be required to be able to foresee his sentence according to what the law regulates. Individuals who engage in criminal activities have a logical need for professional advice to comprehend the legal consequences of their actions. As previously mentioned, the ignorance of specific sanctions for committed crimes cannot lead to unfair treatment.
Fairness will be achieved through social prevention. Justice should be applied from a social state approach that challenges the effectiveness of correctional models reliant on repressive policies. The alternative advocates for a preventive society where the aim is to avoid the problematic instead of applying the severity of punishment as a subsequent measure.
III. PRISON AS DETERRENT AND SITE FOR REHABILITATION:
There is a double prism when talking about imprisonment. The dichotomy is divided into this being a measure dedicated to deterrence and, in addition, to prevent reoffending .
The assumption that increased time in prison inherently leads to a reduction in future criminal activities is inconclusive. It is not a proven fact that prison stay serves as an effective deterrent to the commission of future crimes . Prolonged incarceration not only causes dehumanization but also acts as an epicenter of crime as inmates cohabit with other convicts from whom they are able to acquire strategies to continue committing crimes once rejoining life in society.
In contrast, reintegration-focused initiatives, education, and psychological support advocate reintegration. The legal apparatus must comply with a balanced approach within the penitentiary system as a place of rehabilitation.
The principle of increasing severity and extending incarceration serves as an indirect yet explicit acknowledgment of the system’s failure to rehabilitate and reform individuals within prisons. The penitentiary system must be reorganized to function effectively in terms of rehabilitation and preventing reoffending. As rehabilitation successfully takes place, the necessity for severity in punishment diminishes. This should be the prevailing slogan, representing the overarching aim to be pursued.
IV. SOCIETAL IMPLICATIONS: FROM SOCIAL TO PUNITIVE STATE:
A critical examination of the societal implications of the increasing incarceration rates leads to a shift from a social state to a punitive state. Delving into the negative consequences, investing in expanding prisons detracts from the support of societal development. Addressing operational expenses provokes a marginal impact not only on the reduction in facilities for the captives and their future reintegration but also on the financing aimed at the development of society in general terms.
Increasing the time served in prison will only exacerbate recidivism due to the length and the more severe punishment intended to be in force .
Prevention is key to effective deterrence through fear, and this advocates for preventative measures as managing crime shall not be a form of inhuman or degrading treatment incapacitating a person as sentenced to prison.
V. THE DEATH PENALTY: ETHICAL IMPLICATIONS AND GLOBAL PERSPECTIVES:
There is a need to discuss the death penalty, acknowledging its status as the ultimate severity in punishment. Even though, nowadays, there are fifty-five countries where this penalty is officially applied to the citizens of their territory, from a subjective point of view, this global prevalence should be questioned.
Execution only inflicts the continued use of force continuing the cycle of violence. Capital punishment, instead of avoiding reoffending as a supposed argument of its endorsement, as the ultimate sanction, provokes that criminals commit more serious crimes due to they will serve state-sanctioned killing either they carry out an armed robbery or the same crime but also murdering people.
The lack of sufficient research proving that the death penalty has no deterrent effect on crime has to be emphasized whereas as a counterargument, studies and statistics do show its inefficiency . Evidence from around the world had confirmed it like the United States of America as, in 2004, the average murder rate for states that used the death penalty was 5.71 per 100,000 of the population as against 4.02 per 100,000 in states that did not use it .
VI. SEVERITY IN PUNISHMENT AS THE MAIN TENDENCY:
The severity of punishment reflects a prevailing global trend, positioning itself as the exclusive deterrent to crime. The most recent illustration of this tendency can be observed in Greece , where the Criminal Code is currently undergoing public consultation until December 28, 2023. This represents the latest example in the European context of a country choosing to implement a more stringent application of its legal regulations. According to reports , the proposed amendments extend the reach of imprisonment even to first-time offenders for minor crimes, leaving no room for remorse. Felonies are intended to be served without exception, with suspension being either nullified or applied only in exceptional cases. The objective is to address the so-called problem of non-execution of penalties and the prevailing sense of impunity by imposing more severe consequences, even on petty criminals.
The argument posits that by reducing the occurrence of crimes through incarceration, recidivism will be deterred. However, the efficacy of instilling fear through severity is questionable, as evidenced by the example of the death penalty in certain countries where crime persists despite its presence.
In contrast, the certainty of arrest, rather than the fear of severity, is asserted as a more effective deterrent. This approach suggests that criminals, when faced with the assured prospect of being apprehended, will be more influenced in their behavior. On the other hand, there is insufficient evidence to support the notion that witnessing others being punished has the same impact, as an incarcerated individual may not necessarily influence the decision-making of a potential future criminal.
CONCLUSION:
In conclusion, this article calls for a nuanced and balanced approach to punitive measures, urging legal practitioners and scholars to reevaluate prevailing standards. It underscores the importance of preventive actions, fair treatment, and rehabilitation in promoting a just and effective judicial system. By critically examining the interaction between severity and efficacy, the legal community can contribute to the ongoing evolution of punitive practices in the pursuit of justice.
By María Teresa Plañxart Pérez-Santalla – Lawyer.
1 Deterrence and Rational Choice Theory
https://criminal-justice.iresearchnet.com/criminology-theories/rational-choice-theory/#google_vignette
2 Abstract from the article Punishment as Crime Prevention ‘Deterrence includes general deterrence (punishing one person to influence others) and specific deterrence (punishing one person to deter him from committing future wrongs).’
https://link.springer.com/chapter/10.1007/978-94-007-4845-3_2
3 ‘A very small fraction of individuals who commit crimes — about 2 to 5 percent — are responsible for 50 percent or more of crimes.’
Five Things About Deterrence
https://nij.ojp.gov/topics/articles/five-things-about-deterrence#note3
4 ‘The United States incarcerates nearly 2 million people. But the problem of mass incarceration in this country is not just a function of the number of people in prison—or the much larger number of people who cycle in and out of jails every year. Our system also incarcerates people for far too long, doling out excessively long sentences.’
Research Shows That Long Prison Sentences Don’t Actually Improve Safety
https://www.vera.org/news/research-shows-that-long-prison-sentences-dont-actually-improve-safety
5 ‘The most recent comprehensive United Nations report on the relationship between the death penalty and homicide rates found no evidence for ‘the deterrent hypothesis’, while a recent study in Trinidad and Tobago found no link between the use of the death penalty and murder rates. In the greater Caribbean, six of the 10 countries with the highest murder rates all retain the death penalty. It’s an argument that does not stand up to scrutiny – there is no convincing evidence whatsoever that executions work as a particular deterrent to crime.’
Time to end the myth that the death penalty reduces crime
https://www.amnesty.org/en/latest/campaigns/2013/10/time-to-end-the-myth-that-the-death-penalty-reduces-crime/
6 Data extracted from DOES THE DEATH PENALTY DETER CRIME?
https://www.amnesty.org/en/wp-content/uploads/2021/06/act500062008en.pdf
7 ‘Greek Justice Minister Giorgos Floridis presented the bill titled ‘Amendment of the Penal Code & the Code of Criminal Procedure & Dealing with Domestic Violence’, in the presence of Deputy Justice Minister Ioannis Bougas’
New penal code bill posted for public consultation
https://www.amna.gr/en/article/779367/New-penal-code-bill-posted-for-public-consultation
8 New Penal Code Bill Posted for Public Consultation
https://www.thenationalherald.com/new-penal-code-bill-posted-for-public-consultation/
Crucial reforms to be introduced in the Greek Criminal Code
https://neoskosmos.com/en/2023/11/28/news/greece/crucial-reforms-to-be-introduced-in-the-greek-criminal-code/
