103. årgang, 2016

2016 - 103. årgang Nr. 1

1. Morten Holmboe
Prison or not? On the assignment of punishment under Norwegian Criminal Law

The grounds for a given society’s punishment of offenders has a long history of discussion. In Norway, deterrence is seen as the basis for the criminal justice system – both in general and as a guide in choosing between types of punishment in concrete cases. General deterrence theory suggests that people might abstain from crime either because of an assessment of its potential risks or because the use of punishment leads to a general habit of obeying the law – and that people rest assured that justice is done, leading to a sense of safety in society. If a person charged has made a complete confession, the court shall take this into account when passing sentence. This rule is designed to encourage the guilty to confess, but it is possible that innocent defendants are sometimes tempted to confess in order to avoid harsher punishments. When a fine is imposed, a sentence of imprisonment is executed if the fine is not paid on time. The authorities begin by trying to get the money from the defendant’s legal assets. Seventy-seven percent of the defendants who are supposed to go to prison pay the fine. Does the money come from friends and relatives or from crime? In 2010, the punishments for several types of crime were increased. Given the theory of deterrence, it would be reasonable to assume that the legislators hoped that longer sentences would lead to less crime. Yet when assessing the need for more prisons, there is no discussion of the value of deterrence. The theory of general deterrence is also applied in concrete cases. In certain types of cases there are established guidelines for when to apply prison. Nonetheless, general deterrence has been given different weight in comparable areas, e.g., fraud against insurance companies versus fraud against the social services. Certain rules concerning the rights of the convict are based on the kind of punishment (prison or not) that was meted out, e.g., the right to inheritance or insurance. Since a defendant’s personal situation can have a considerable bearing on punishment, I question whether the rules should be more flexible.

2. Nicolaj Sivan
Russia Criminal passivity: Basis for liability and alternative actions

Criminal passivity is characterized by punishment not for something one did, but for omitting a certain act. This means that one has to be concerned with both the criteria for liability by omission and with the alternative actions one should have taken to avoid punishment. The article focuses on the specific problems that present themselves when dealing with criminal passivity under Danish law including questions concerning legal bases and the consequences thereof. When examining criminal passivity, it is important to distinguish between crimes of omission within and outside the scope of complicity, and between different types of criminal offences. The most relevant area of criminal passivity in case law concerns passive complicity. A new case from the Danish Supreme Court has set out some general criteria for liability in this area. In regards to crimes against children, case law shows that there is an obligation for parents to protect children and that demands regarding alternative actions are strict. Outside the scope of complicity there are cases of criminal omission regarding possession of narcotics and firearms.

3. Lisbeth Garly
Use of pepper spray in Danish prisons and detention centers

This article discusses the use of pepper spray in Danish prisons and detention centers. Using qualitative interviews with prison officers and inmates as well as reviews of reports from prison officials about their use of pepper spray, the article examines whether the Danish rules and practices fully comply with human rights requirements and recommendations. The article offers insights into the situations in which pepper spray is typically used, where it is used and who it is used against. The article expresses concern about the use of pepper spray particularly in confined spaces and against mentally ill inmates. The authors argue that the use of pepper spray in Danish prisons should be more restrictive and more precisely regulated.

4. Kristina Jerre
Harsher punishments for repeat offenders? The public's opinion according to a Swedish vignette study

The principle of punishing repeat offenders more severely is widespread. A recurring justification for this principle is that ‘public sentiment’ demands harsher punishments for recidivists. In this study survey participants are asked to propose appropriate sanctions for five different criminal cases described in vignettes. The offender in each case is described as either having or not having previous convictions. There is little difference in the sanctions given to previously convicted and non-convicted offenders. According to the results, ‘public sentiment’ does not come across as sufficiently homogeneous, on its own, to legitimize a system where repeat offenders are systematically and consistently punished more severely than offenders with no previous convictions. If we are to justify enhanced punishments for repeat offenders, we should seek a more solid basis for doing so than simply relying on routine referrals to public opinion.

2016 - 103. årgang Nr. 2

1. Gitte Svennevig
Prisoners’ self-perceived shame and pride after imprisonment

The aim of this study is to examine former prisoners’ experiences of shame in life after imprisonment, and how processes of change from shame to pride take place.Qualitative in-depth interviews are conducted with seven former prisoners affiliated with the self-help organization WayBack. The empirical material is processed using content analyses. A hermeneutic phenomenological framework inspired the study.The study shows that the movement from shame to pride is closely related to empowerment and to a change from marginalization to integration.The analysis reveals that shame is activated by society’s limited acknowledgement of ex-prisoners. Social arenas of equals can be experienced as essential to create new identities and a sense of empowerment. Acknowledging that change requires acceptance of help from others - as well as provision of help to others, appears to be an important facilitator of change from shame to pride. The individual's opportunity to put words into feelings is central. Likewise, the achievement of coherence in the world (SOC) is of crucial importance. The importance of being recognized and achieving social value are also key findings of the research.

2. Morten Holmboe
An enlightened public discourse: On the tasks of legal research regarding criminal politics

What are the primary tasks of legal research regarding the politics of crime? Political decisions on crime are decided and executed by politicians, the courts and administrators. Researchers should not avoid politically hot issues, but must take care not to let their political sympathies influence their statements when they give opinions qua legal experts. Academic freedom implies a duty for researchers to take part in enlightened public debates.

3. Erik Svensson
Gärningsmannaskap och medgärningsmannaskap i svensk rätt

The article presents an overview of the conclusions from my dissertation, Gärningsmannaskap vid fleras deltagande i brott, defended at Uppsala University in May 2016. The dissertation examines the concept of perpetration under Swedish law, specifically as the concept concerns the involvement of two or more actors. Three distinct questions are discussed: (i) how the distinction between perpetration of a crime and aiding and/or abetting a crime is to be drawn; (ii) how the distinction between different forms of perpetration should be made in Swedish criminal law; and (iii) in what cases two or more actors can be held criminally liable for having committed a crime together as perpetrators.

4. Liv Os Stølan
“But she usually tolerates when I threaten to get a chainsaw…” A study of assaults against public servants among a population of Danish mentally disordered offenders

The issue of violence and threats against public servants has attracted significant public attention in recent years and plays an important role in the ongoing discussion of possible explanations for the recent significant growth in the number of sentences to psychiatric treatment in Denmark. The proportion of sentences given for violence and threats against public servants (Danish Penal Code § 119) has increased dramatically, from 5 % in 1980 to approximately 25 % of the total annual number of new sentences to some kind of psychiatric measure in 2014. Studies show that victims are most frequently social and health care assistants, nurses and physicians. This study is part of a larger mixed method study comprising all patients treated in a specialized forensic outreach team (ForACT) in the Mental Health Services in the Capital Region of Denmark over a period of 7½ years (2006 - 2014) (n=181). The types of assault against public servants examined in this sample are diverse, varying from mockery and verbal threats to physical attacks with severe injuries. Displaying complexity and diversity, the mentally disordered offenders (MDOs) in this study are generally characterised as having significant social problems, severe mental illness, substance use issues, and extensive criminal records. MDOs in the sample who have been convicted under § 119 seem to score higher than MDOs never convicted of assaults against public servants on a range of parameters, e.g., criminal onset, type of crime(s) committed, and frequency of psychiatric hospitalisation. It is also argued that assaults against public servants may be seen as social situations. Research that analyses the complexity and diversity of these situations and relations may provide a better basis for preventing conflicts.

2016 - 103. årgang Nr. 3

1. Lisbeth Garly and Peter Kessing
Police use of pepper spray

This article discusses the use of pepper spray by police since its introduction to Denmark in 2008. Pepper spray contains pepper extract and has been assessed as capable of causing serious health risks by the Danish Health Authority. International human rights bodies have also expressed concerns about the use of pepper spray. Despite this, no comprehensive study or evaluation of the use of pepper spray has ever been conducted in Denmark. The current article uses qualitative interviews with police officers and people exposed to pepper spray, as well as a review of reports from police officers about their use of pepper spray, in an examination of whether Danish rules and practices fully comply with human rights requirements and recommendations. The situations in which pepper spray is typically used are described with a focus on where it is used and who it is used against. The authors express concern about the use of pepper spray in a number of situations and argue that its authorization should be more restrictive and precisely regulated. Finally, the article describes a dialogue with the Danish National Police and the pending police act regulating pepper spray.

2. Jane Dullum
A new position for the victim? On the strengthening of victims’ rights in the penal process in Norway

A few decades ago, victims of domestic violence were relatively invisible in the penal process in Norway. Today, new penalties are implemented to fight domestic violence, and penalties have been increased. At the same time, there has been a growing critique of the use of legal strategies to fight domestic violence. The most profound critique has been that the penal system does not care for the victim. To protect the victim, victims’ rights in the judicial process have thus been strengthened, e.g., the right to a lawyer; to attain information; to be present in the courtroom; to participate in the proceedings. The current article discusses the extent to which these new rights actually strengthen the position of victims of domestic violence.

3. Linda Kjær Minke
Multiple perspectives on imprisonment in Europe

There are currently over 1.6 million prisoners in Europe and conditions in European prisons vary widely. The European Society of Criminology’s Working Group on Prison Life and the Effects of Imprisonment was established in 2010. The Working Group consists of scholars from over 20 countries who aim to encourage prison research in Europe. These academics meet twice per year to discuss a variety of prison-related topics. The current article reviews some of the contributions to the Working Group’s meeting in Denmark in April 2016. It describes a broad selection of contemporary research on various aspects of the unique prison contexts found in different European countries. The contributions highlight a range of opportunities to improve conditions of confinement and rehabilitative efforts, as well as to reduce recidivism after release.

4. Liv Os Stølan
Typologies of crime committed by mentally disordered offenders: A challenge to the statutory task in hospital psychiatry of preventing recidivism to criminal acts

The aim of the study is to identify and describe a number of characteristics among a selected sample of mentally disordered offenders referred to a specialized forensic assertive community treatment team in Copenhagen (n=181). Looking at a number of variables, the study identifies a heavily burdened patient population in terms of social marginalization, serious mental illness, and criminal acts. Having identified a huge variety and number of typologies of criminal acts, we argue that the task of preventing recidivism to new crime is not clear among mental health professionals. Furthermore, it proves difficult to prevent crime when the typologies of crime are diverse and widespread. It is one thing is to prevent violent crimes closely related to an actual psychotic mental state and quite another to prevent drug crimes or property crimes not so obviously related to a mental disorder. The article concludes that we need to increase our knowledge and awareness of risk and protective factors specifically related to criminal recidivism and improve cooperation between hospital psychiatry, social services and probation services.