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Pozytywna prewencja ogólna w nauce niemieckiej (wybrane koncepcje)

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Szamota-Saeki B.

Archiwum Kryminologii

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2004

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issue XXVII

43-66

EN

The idea of socio-educating function of punishment is not recent. It appeared in XVIIIth century. Its renewal of XXth century is explained by the disappointment of the deterrent and re-socialising effectiveness of criminal punishment. It is also a reaction towards the abolitionary postulates’ questioning the sense of existence of the criminal punishment. There are many versions of this theory. It is widely popular in Germany where it is calted ‘positive general prevention’ or the ‘integrating prevention’. The term ‘positive general prevention’ was constructed in Germany in opposition to the traditional term ‘general prevention’ understood solely as a general deterrence. It is meant to stress the turn away from the so understood ‘general prevention’ and a promoting of the positive function of criminal punishment. This ‘positive’ or ‘integrating’ function of punishment is, in most simple terms, based on strengthening the morality, supporting the desired attitudes and ways of behaving, strengthening the trust in law, in shaping the law awareness, and also encouraging norms recognition. The purpose of the punishment is preserving and strengthening the normative integration of society. It is realised not by creating fear but by using persuasion, by teaching about necessity and usefulness of the criminal law norms and by obeying them for the social order. It is also important to bring about a custom of law obedience. The popularity of the positive general prevention is explained differently in the German studies. Most often, it is pointed out that, on the one hand, a return towards the absolutist theories is commonly rejected there, and on the other hand, that there is a popular disappointment with the efficiency of prevention and re-socialisation. The positive general prevention an opportunity for keeping a preventive character of theory of punishment with a simultaneous introduction of a retributive element in form of guilt rule. It thus creates a combination of rationality of prevention theories with a guaranteed character of the absolutist theories. It also has an advantage over the mixed theories of punishment as it is directed at a single goal. Despite of a significant differentiation of the positive general prevention theories, it is relatively easy to define some of its characteristics: the addressee of an execution of the criminal law and punishment is society and not an individual person, where it is mostly about the influence on those members of society who do obey the law. the positive general prevention aims at long term, indirect activity and not at an immediate, short term effect on society. the persuasive nature of the criminal law is stressed, its ability to persuade, as well as the symbolic, expressive meaning of punishment as means of communicating. The content of that message in German conception is, in general, that criminal law norm is still valid. It exceptionally evokes to the moral condemnation of a deed as a subject of that message. the representatives of the theory of positive general prevention educe the purpose of the punishment from the entire penal law system. Penal law and the penalty itself come in those ideas on the very same grounds. Therefore it is not a theory of punishment but a theory of the penal law. these theories agree that the positive, integrating effect can be brought about only by a just punishment. a very typical feature of the German ideas is using the term of guilt in reference to functionality. It makes them vulnerable to a reproach that, in fact, they are veiled absolutist theories. I analyse five ideas of the positive general prevention in this article. It was my aim to select those ideas which could indicate its diversity. Mayer's theory contributed to the rebirth of the socio-educational theory of punishment function in German studies. It belongs to the movement of the expressive punishment theories. According to Mayer penalty has an educational aspect for the society by strengthening or creating morality of the community. Integrating prevention, as understood by H. Muller-Dietz, is an activity of punishment which is based on creating and strengthening the ways that law is perceived by the citizens. The integrating function is realised by the regulatory and court systems of justice. The most popular in Germany is the theory of G. Jakobs. It clearly refers to the theory of systems by Niklas Luhmann. Jakobs stresses that punishment expresses a protest against breaking a norm paid by the offender. It shows that the norm broken with a deed is still valid and that it is determinant as an orientation example for social interactions. A very strong feature of W. Hasserman’s idea is the emphasis of how the penal law system influences the entirety of social control processes. Streng refers to the psychoanalysis and psychology of the punishing society, in order to explain the general preventative activity of punishment. He mentions three unconscious, emotional sources of punishment. In the conclusion I discuss the significance of the presented theories for the studies of criminal law and the practices of administration of criminal justice.

2

Odstraszające oddziaływanie kary na sprawcę przestępstwa w świetle badań empirycznych

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Szamota-Saeki B.

Archiwum Kryminologii

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1995

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issue XXI

7-39

EN

The number of studies on specific deterrence is not large. Some data on this subject can be found in other studies aimed e.g. at evalution of effectiveness of diffrent penal measures, or analysis of criminal careers. One of the reasons of this lack of interest in specific deterrence is a belief, rather common today and particularly marked in the 1960s, that punishment not only fails to deter the convicted person from futher offenses but – quite the contrary - increases the probability of his futher criminal carrer. Another reason is probably the great difficulty in distinguishing for research purposes of the impact of specific deterrence from the other effects of punishment. Unfortunately, a statement made by J. Gibbs over twenty years ago still remains valid: there is no theory of specific deterrence, and the hypotheses concerning specific deterrence are vague and difficult to verify empirically. During the last twenty years, there was a progress in the methodology of research into specific deterrence. New success criteria were introduced into the assessment of deterrent effect of punishment, and the method of random field experiment was used. Researchers started to compare the effect of punishment with the effects of escaning punishment, instead of limiting themselves to comparisons of relative effectiveness of some penalties as opposed to some other ones. The progress was less marked in the formation of the theory of specific deterrence. It consists in attempts, on the one hand, at a new conceptualization of the problem of deterrence, and on the other hand, at integrating the deterrence hypothesis with other theoretical approaches. The paper consists of seven parts. The Introduction (I) contains analysis of the notion of specific deterrence, the criteria to distinguish between specific and general deterrence, tvpes of deterrence. Also discussed have the recent attempts at a new conceptualization of tne problem of deterrence through inclusion into that notion of not only the “direct costs of legal sanctions” but also “indirect costs”, or through the use of another criterion to distinguish between specific and general deterrence. Chapter II contains a brief discussion of early studies on specific deterrence; the findings have been discussed and numerous methodological flaws pointed out. The conclusion from those studies (that severe penalties involve a higher recidivism rate than lenient penalties) was generally seen as a prove that punishment has no specific deterrent effect on the futher behaviour of convicted persons. This conclusion was unjustified, though. And that for several reasons. The discussed studies often failed to distinguish between the mechanism of deterrence and the other effects of punishment. They also failed to solve the problem of selection bias in sentencing where specific types of penalties are imposed on specific categories of offenders; the difference between such groups of convicted persons is that even before the imposition of penalty, the probability of their relapse into crime was different. The studies examined but a marginal effectiveness of some penalties as compared to some other ones. What they overlooked, instead, was that the growth in recidivism rate cannot be estimated which would have taken place were no criminal penalties at all imposed on offenders. Chapter III discusses the findings of studies which tested two opposing hypotheses; i.e. that punishment either deters offenders (deterrence hypothesis) or amplifies offendling (amplification hypothesis). Both the conception of deterrence and that of labeling involve too one-sided and simplified an approach to the impact of punishment on the further conduct of offenders as they ignore the possibility of effects other than the anticipated ones. This was reflected in these studies in which the researches posed instead of posing questions in the categories of “whether” (does punishment deter? does pinishment amplify affending?), instead of trying to define the conditions of emergence of each of those two effects. Analyzed in few studies only were mediating psycho-social processes between punisment and the punished pefsons’ further conduct. The findings of different studies are often inconsistent. Some seem to confirm the amplification hypothesis although researchers sometimes stress that this effect is not stable Other findings point to the effect of deterrence. Still other studies showed that: punishment seems do not influence a pefson’s further criminal career. Finally, some of the latest findings also indicate the possibility of amplifijing offending under some conditions and of deterring effect on offending - under some other circumstances. Chapter IV discusses the implications of the criminal careers approach for methodology of studies on specific deterrence. What is particularly worthy of attention here is: 1) departure from the use of a sole success criterion in the evaluation of deterrent effect of punishment, and an attempt at grasping the impact of punishment on different dimensions of criminality such as the length of criminal career or fraquency of offenses; 2) investigation of the impact of punishment at different stages of a person’s criminal career. The success criterion where success means a person’s abstention from further offenses is replaced with the before and after comparison criterion where the intensity of a person’s criminal career before and after punishment is compared; this replacement is of a great importance in studies of effectiveness of penal measures imposed on chronic offnders. As suggested by the findings, certain penalties may in cessation of delinquency at the initial stage of the criminal career (on the occasion of the first and possibly also the second contact with the police). At further stages of that career, a decrease in the intensity of delinquency of the persons convicted is possible. Chapter V discusses attempts at including the hypothesis of specific deterrence into the economic model of delinquent behawior, and studies carried out by economists. According to some economists, specific deterrence can be included into the theory of rational choice provided it is treated as a special case of general deterrence. In tlis approach, the experience of a sanction becomes a factor influencing the anticipated sanctions. Chapter VI is devoted to discussion of the results of a series of rondom field experiments conducted in selected cities of the United States. The purpose was to evaluate the effectiveness of arrest as compared to other reactions to violence against a spouse (nearly all victims in the study were women). The obtained results were not uniform: in some experiments, deterrent effect of arrest was found out, while the rest showed an amplifying effect of arrest on the arrested person’s further violence against his spouse. The authors explain this divergence of results with a different impact of arrest on different types of persons. Thus the results suggest that arrest has a deterrent effect on permanently employed suspects; instead, suspects without a regular job tended to use violence more often after the arrest incident. The last Chapter (VII) recapitulates the findings. They show that it was a premature decision to reject the hyphothesis of specific deterrence. Punishment has a different impact on different persons: in some situations it results in amplication of offending; in some other ones, it deters a person from further offenses; and in still other situations it seems not to have any effect at all on furter offending. The findings point to a great importance in this respect of the first contacts with the law enforcement agencies. Moreover, the differentiated effect of punishment seems to depend on the offender’s age, sex, and attitude towards risk, and also on his permanent employment. It should be stressed that many studies use a broader definition of punishment, not limited to the penalties imposed by court. Some researchers treat even a person’s contact with the police as punishment; others believe that this function is performed by arrest. These different working definitions of punishment make it difficult to interpret the findings that relate to absolute deterrence, that is assessment of the effects of imposing punishment as compared to those of escaping punishment. Nearly all studies dealt with recidivism and, first and foremost, the effectiveness of punishment in reducing a person’s further delinquency. To a slight extent only did they try to define the meaning of punishment for those punished, their subjective estimations of probability and severity of punishment. For this reason, interpretation of the findings in the categories of stating whether punishment has a deterrent effect is not always justified.

3

Wpływ prawa karnego na przekonania moralne społeczeństwa w świetle wybranych badań empirycznych

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Szamota-Saeki B.

Archiwum Kryminologii

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2008

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issue XXIX-XXX

203-214

4

Społeczno-wychowawcza funkcja kary a koncepcje natury ludzkiej (na przykładzie koncepcji Michaela Baurmanna)

100%

Szamota-Saeki B.

Archiwum Kryminologii

|

2009

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issue XXXI

73-100

EN

In the present debate on theory of positive general prevention more emphasis is put on empirical than normative issues. It is understandable since the number of empirical studies, proving the theses of moral-educational role of the punishment, carried out so far is low and the results are inconclusive and preliminary. This justifies the question if these theories have any grounds in social reality. It is even suggested that the theories are lawyers’ ideas and their greatest asset is the difficulty of obtaining an empirical proof. Because of this, one may refer to them without a fear that the claims will be rejected in empirical research (disregarding purely normative theories, that is). What is a characteristic feature of various version of positive general prevention is that it is meant to be achieved not by fear of punishment but other mechanisms which do not emphasise the element of constraint and real affliction of state-imposed punishment. It is most of all about emphasising persuasive, educational, socialising and symbolic character of criminal law impact as well as about creating a habit. In some theories, state-imposed punishment plays a role of an argument in shaping rationally motivated convictions which should favour voluntary obedience of criminal law norms. Since state-imposed punishment becomes a motivating measure which can be combined with autonomy and dignity of an individual, ethical reservations concerning it use are eliminated to a great extent. Because of this masking of the real character of stateimposed punishment, this is the point where the risk of its broader use appears. Therefore the primary task is to restate the theory of positive prevention into a general empirical theory whose claims can be verified. Previous studies have shown that these theories are available for empirical research, which belies the widespread belief that they can not be subjected to empirical verification. There is no doubt that the rearrangement of the thesis of general positive prevention and making terminology more precise would help in building an empirical theory. The biggest challenge is to develop a theoretical model of human behaviour which could support the theory of general positive prevention. The need to provide such a theoretical model of human behaviour was shown by German sociologist, Michael Baurmann, and it was him who undertook this task. Importantly, not only has he developed such a model, but he applied it directly to reformulate selected varieties of positive general prevention in an empirical theory. On an example of two models designed for different versions of positive general prevention, Baurmann showed not only how to organize the varieties of moral and educational theory of punishment, but also how to describe them in the language of empirical research. General prevention understood as general deterrence is based on a model of rational choice in the sense of homo economicus.

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Pozytywna prewencja ogólna w nauce niemieckiej (wybrane koncepcje)

Odstraszające oddziaływanie kary na sprawcę przestępstwa w świetle badań empirycznych

Wpływ prawa karnego na przekonania moralne społeczeństwa w świetle wybranych badań empirycznych

Społeczno-wychowawcza funkcja kary a koncepcje natury ludzkiej (na przykładzie koncepcji Michaela Baurmanna)