Sex crimes and the new punitiveness

In the last few years, new ways of punishing sex offenders have been introduced in many modern societies. However, these sanctions have a broader significance than this: they are part of a broader set of penal arrangements-directed at the criminal population as a whole-which represents a new punitiveness. This seems to be moving the direction of legal punishment beyond the established parameters that had hitherto been set for it in modern society. This had involved punishment becoming increasingly administered by penal bureaucracies, to the exclusion of the general public, being influenced by the opinion of penal experts, and becoming more tempered, consistent and purposeful in form. Sanctions that did not fit these criteria faded out of modern penality. The indeterminate prison sentence was introduced at its outer limits as a residual measure of control to be used against those offenders-frequently sex criminals-for whom the existing penal framework was thought inappropriate. Even so, by the 1970s, these special penal measures were falling into disuse. However, the new punitiveness has not only given new life to them, but has also led to the introduction of measures which seem to reverse or move beyond modernpenal parameters. The article argues that the reasons for these shifts lie in the profound economic and social changes that have taken place in Western societies over the course of the last two decades or so.     

Retributive Parsimony

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified.     

Public attitudes about the culpability and punishment of young offenders

Opinions of 789 community adults were individually assessed, using a video-clip of an actual armed robbery and other measures, to determine whether attitudes toward the culpability and appropriate punishment of young offenders were linked to offenders' age, race, and physical appearance. Three major findings emerged: (1) community adults endorse the view that criminal choices of young offenders are influenced by their developmental immaturity and attribute more responsibility for the criminal act as the actor gets older; (2) the public has a relatively strong preference for differential treatment of juvenile and adult offenders; and (3) attitudes about culpability and punishment are not influenced by the culprit's race, physical maturity, or appearance of "toughness." Indications that punitive public opinion toward youth crime may be changing and implications for juvenile justice policy of the study's findings are discussed.     

Psychosocial maladjustment and criminal responsibility--results of a catamnestic study

The introduction in 1968 of the legal concept of Grave Abnormal into the penal code, Development of the Personality Amounting to a Disorder made possible criminal exculpation on the basis of psychosocial maldevelopment. Statistically established criteria for its application have hitherto been lacking. A corpus of 276 offenders on probation under this legal provision has now been compared statistically with a control group homogeneous in respect of the significant parameters. It has been possible to arrive at differentiated syndromes which are well characterised by the corresponding criteria in the penal code.     

Punishing Repeat Offenders in the Netherlands: Balancing between Incapacitation and Treatment

In the Netherlands, punishing repeat offenders is not a foregone conclusion. After a decades-long search for an appropriate punishment, repeat offenders are currently punished by means of a custodial security measure. A custodial security measure is additional incarceration often beyond the original penalty. This new penal measure can be imposed for a maximum of 2 years, and is designed to ensure public safety and reduce recidivism by way of incapacitation. However, given the fact that nearly every repeat offender suffers from severe comorbid problems (e.g., a mental illness and substance abuse disorder), judges tend to consider these objectives from a long-term perspective by insisting on as much treatment during detention as possible. Consequently, the punishment for repeat offenders balances between incapacitation and treatment. While some have argued that the current Dutch sentencing scheme represents a new way of sentencing, this article demonstrates that the reliance on the sometimes dichotomous goals of punishment and rehabilitation is characteristic not only of the current type of repeat offender punishment, but of all previous types as well. Copyright © 2015 John Wiley & Sons, Ltd.     

Some Surprising Implications of Negative Retributivism

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side‐constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side‐constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side‐constraints limit the kinds of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non‐degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non‐moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment.     

“Prison Will Either Make Ya or Break Ya”: Punishment,Deterrence, and the Criminal Lifestyle

Although a prison sentence is often considered to be among the worst punishments that the state can provide, previous research indicates that offenders do not necessarily share this view. Some inmates, for example, adjust to prison life with relative ease, do not view their time in prison as severe punishment, and may even prefer prison to alternative sanctions such as boot camp or probation. To help explain such views, we point to the utility of a “criminal lifestyle” perspective. We argue that offenders who are committed to the values of the criminal subculture tend to view prison in a unique way. For various reasons, such offenders are less likely than others to view imprisonment as difficult or severe and they are less likely to be deterred by prison. Drawing on data from a large inmate survey, we find initial empirical support for these arguments. Implications for deterrence and future research are discussed.     

Should there be a duty to report crime?

A number of studies have examined why people do or do not respond when they observe criminal activities. Traditionally, the legal system has not punished the failure to report a crime. This study sought to ascertain whether a sample of college students and public citizens thought there should be legal punishments for the failure to report crimes. Respondents (N = 301) were presented a list of illegal acts and asked to select from a list (no punishment, fine, or prison sentences) what type of punishment should be enforced for failure to report that crime. Analysis indicated that the sample thought there should be punishments for most of the crimes, with a fine as the modal response. For more serious crimes, more serious punishments were selected, and there were some sex differences. It appeared that public support for such laws might be strong.     

Hegelian restorative justice

In the Philosophy of Right, Hegel claims that crime is a negation of right and punishment is the “negation of the negation.” Punishment, for Hegel, “annuls” the criminal act. Many take it that Hegel endorses a form of retributivism—the theory that criminal offenders should be subject to harsh treatment in response and in proportion to their wrongdoing. Here I argue that restorative criminal justice is consistent with Hegel's remarks on punishment and his overall philosophical system. This is true, in part, because restorative justice integrates Hegel's instructive discussion of confession and forgiveness in the Phenomenology of Spirit. Hegel claims that true moral relationships allow space for persons to confess their moral shortcomings and forgive the shortcomings of others. Restorative criminal justice brings the perpetrators and victims of crime together to offer confessions and forgiveness and to work to heal the various wounds caused by crime. I do not claim that Hegel must be read as advocating restorative justice. While Hegel tells us what punishment does, he does not commit himself to any form of punishment. What I offer here is a rational, progressive reconstruction and extension of Hegel's conception of crime and punishment.     

Criminal Attempts and the Penal Lottery

In most penal systems, success is punished more than failure. For example, murder is punished more severely than attempted murder. But success or failure is often determined by luck. It thus appears that punishment is allotted on the basis of arbitrary factors. The problem of criminal attempts is the question of how to best resolve this apparent tension. One particularly sophisticated attempt at resolution, first developed by David Lewis, holds that such differential punishment is not unjust when understood as a natural penal lottery. What is most interesting about this view is that it does not appear to involve a commitment to resultant moral luck. I argue that the natural penal lottery fails to deliver justice. Upon analysis, it carries the same implication that it sought to avoid—namely, a commitment to resultant moral luck. I then argue that there can be, in principle, no penal lottery that delivers justice, natural or otherwise.     

Bad or Mad? Personality disorders and legal responsibility-the German situation

Criminal offenders have a high rate of personality disorders (PDS), especially Antisocial Personality Disorders and psychopathy, but criminal acts are not necessarily the result of PD. Findings from psychiatric research suggest that the development of PD is influenced by genetic factors, that can result in deviant traits in temper, emotionality and cognitive style. There is general agreement that those peculiarities and vulnerabilities find their expression and structure only under a complex interplay of stimulating or impairing environmental influences. Do these genetic factors-or other factors-diminish a person's criminal responsibility? There is no difficulty in diagnosing PDs, but the challenging questions arise in forensic assessments of defendants for criminal responsibility who have a PD. This article discusses the German legal situation and special problems created by the term of "diminished" criminal responsibility. In contrast to the Anglo-American legal situation, the German criminal law obliges the court to order an indeterminate forensic - psychiatric confinement, in addition to punishment, if the offender had acted under diminished criminal responsibility and is now still considered to be dangerous. The convicted offender remains under the control of the criminal court during psychiatric hospitalization. The change from handling the personality disordered offender as a criminal to handling him as someone with a mental disorder creates a social option for extended state interventions, including indeterminate hospitalization.     

Victim-Centered Retributivism

Abstract: Critics charge that retributivists fail to show why the state should concern itself with ensuring that criminal offenders are punished in accordance with their ill deserts. Drawing on the notion that the state should attempt to equalize the realization of the interests designated by rights, it is argued that legal punishment restores the equality of condition, disrupted by criminal conduct, that all citizens are entitled to. While this equality of condition might be restored in various ways, it is argued that the imposition of punitive losses is the most appropriate way to restore it in most cases. An account of the ill deserts of offenders, as a function of the harms their crimes produce and the extent of their culpability for those harms, is briefly elaborated.     

Against Supermax

abstract Supermax prisons subject inmates to extreme isolation and sensory deprivation for extended periods of time. Crime reduction and retributive arguments in favour of supermax confinement are elaborated. Both types of arguments are shown to falter once the logic of the two approaches to the justification of legal punishment is made clear and evidence about the effects of supermax confinement on inmates is considered. It is also argued that many criminal offenders suffer from defects in their capacities for morally responsible action, lack sufficient opportunities to remain law‐abiding, or are understandably alienated from society and the prison regime. The implications of this more realistic picture of offenders for supermax confinement are then explored briefly.     

Law and the confinement of psychopaths

Civil commitment in the United States historically has followed a medical, targeting individuals with serious mental disorders and providing for their treatment in the least restrictive setting. In the last decade, however, commitment laws have appeared in some states permitting the hospitalization of personality-disordered criminal offenders at the end of a penal sentence. The American Psychiatric Association has fiercely opposed these laws. The U.S. Supreme Court has given its qualified approval, although legal challenges persist. These laws, together with British proposals to permit the civil commitment of dangerous personality-disordered individuals, should be resisted by all professional disciplines.     

An examination of the assumptions of specialization, mental disorder, and dangerousness in sex offenders

Sex offenders have been singled out for differential treatment by the legal and mental health systems. This article attempts to inform law reform efforts and criminal justice mental health policy by examining the assumptions underlying differential legal and mental health treatment of sex offenders. These assumptions include the theories that sex offenders are mentally disordered and in need of treatment, specialists in sex crimes, and more dangerous than other criminal offenders. Empirical findings demonstrate that sex offenders are not specialists in sex crimes and are not mentally disordered. Examination of past research suggests that sex offenders are not at more risk than other criminal offenders to commit future sex crimes. Implications of research findings for selective prosecution of sex crime cases, mental health policy, sex offender legislation, and predictions of future dangerousness are discussed. Proposals for future research needs and law reform are presented.     

From moral theory to penal attitudes and back: a theoretically integrated modeling approach

From a moral standpoint, we would expect the practice of punishment to reflect a solid and commonly shared legitimizing framework. Several moral legal theories explicitly aim to provide such frameworks. Based on the theories of Retributivism, Utilitarianism, and Restorative Justice, this article first sets out to develop a theoretically integrated model of penal attitudes and then explores the extent to which Dutch judges' attitudes to punishment fit the model. Results indicate that penal attitudes can be measured in a meaningful way that is consistent with an integrated approach to moral theory. The general structure of penal attitudes among Dutch judges suggests a streamlined and pragmatic approach to legal punishment that is identifiably founded on the separate concepts central to moral theories of punishment. While Restorative Justice is frequently presented as an alternative paradigm, results show it to be smoothly incorporated within the streamlined approach.     

Mixed Theories of Punishment and Mixed Offenders: Some Unresolved Tensions

Mixed theories of legal punishment treat both crime reduction and retributive concerns as irreducibly important and so worthy of inclusion in a single justificatory framework. Yet crime reduction and retributive approaches employ different assumptions about the necessary characteristics of those liable to punishment. Retributive accounts of legal punishment require offenders to be more responsive to moral considerations than do crime reduction accounts. The tensions these different assumptions create are explored in the mixed theories of John Rawls, H. L. A. Hart, and Andrew von Hirsch. It is argued that none of these theories successfully resolve the tensions. The prospects for resolving them are then discussed.     

Reactions to youth crime: perceptions of accountability and competency

Recent changes in juvenile justice policies have stimulated debate among legal professionals and social scientists. As such, public opinion concerning juvenile offenders is an important and timely topic for empirical study. In the present study, respondents read a scenario about a juvenile who committed a crime, and then decided on a sentence and rated perceptions of the juvenile's accountability and legal competence. Four between-subject factors were manipulated: age of the defendant (11 versus 14 versus 17 years), type of crime (shooting versus arson), crime outcome (victim injured versus died), and time delay between the instigating incident and the crime (immediately versus one day). The type and outcome of the crime were major motivating factors in sentencing decisions and perceptions of legal competence, and, although younger offenders were seen as less accountable and less competent than older offenders, sentence allocation and attitudes towards punishment were not significantly affected by offender age.     

Perceptions of punishment for crime

A survey questionnaire administered to 662 university undergraduates is used to assess patterns of perceptions of punishment. Results show that the nature of the crime, characteristics of criminal offenders, and characteristics of respondents affect the nature of punishment assigned for 25 criminal offenses.