Februar 2004 - 91. årgang Nr. 1
1. Peter Kramp & Gorm Gabrielsen:
Characteristics of Convicts Seeking Pardons Due to Mental Disorder – Today and 35 Years Ago.
This study compares a sample of recently convicted persons who have filed a petition for mercy on the basis of a mental disorder with two similar samples drawn 35 years ago. The study shows inter alia that present-day petitioners are far more strained – both educationally and socially – than their counterparts of 35 years ago. While 24 % and 14 % of the older sample subjects were psychotic, 50% of the current sample suffers from a psychotic condition – an increase primarily due to a rise in the number of schizophrenics. Thirty-five years ago 25 % of the applicants had a substance abuse problem; today only 25 % exhibit no misuse of drugs or alcohol. The larger fraction of psychotics and substance abusers explains the poor social situation for today’s applicants. In accordance with other studies, the present data show a significant association between schizophrenia and violence. Half of the applicants in the present data were pardoned, including all of the psychotics. However, more non-psychotics were pardoned in the older sample than is currently the case – this being in accordance with the treatment ideology driving legislation at that time. The current article criticises the increasing number of psychotic petitioners, since they - according to Danish law – should be automatically exempt from punishment anyway. The study reveals that the juridical system increasingly fails to recognize psychotic disorders among those charged with offences.
2. Kimmo Nuotio:
A Critique of a Critique – On the Possibility to Present Arguments that Would Limit the Legitimate Use of Criminalizations. Discussion of a Doctoral Thesis by Claes Lernestedt.
Can the criminal sciences be expected to produce a theory of criminalization that would allow a detailed analysis of the requirements necessary for the legitimate use of criminalization? If not, what is the best it can do? The present article is a review of a thesis by Claes Lernestedt titled, Criminalization. Problems and Principles (originally, Kriminalisering. Problem och principer, 2003). Lernestedt’s thesis examines the difficulty of assessing the rationality of decisions to criminalize behaviour – especially as they relate to the criteria used to do so, and the “problem areas” or elements of crime that are critical in regard to the legitimate use of criminalizing powers. The thesis seeks to provide a comprehensive analysis of the problems and principles related to these questions. Lernestedt takes for granted that we have too much criminal law today. His thesis focuses on the arguments that have been proposed to limit the power of the legislator. Thus, the book consists mainly of a discussion and critique of critical arguments rooted in legal philosophy, e.g., the German doctrine of a “Rechtsgut” (the act must be harmful for a legally protected interest), the concept of harm as developed by liberal theorists J. St. Mill and J. Feinberg, problems related to the distance between the act and the possible harm, and the requirement of effectivity. The Nordic science of criminal law has yet to develop a detailed doctrine of criminalization. Yet Lernestedt’s thesis provides a new theoretical perspective on the limits of the criminal law. The present author aims to more thoroughly examine the merits and limitations of Lernestedt’s thesis by discussing, i.a., different sources that could be referred to in producing convincing arguments concerning the limits of the legitimate use of criminalization.
3. Leif Petter Olaussen:
Why is Crime a Social Fact.
In 1987, Nils Christie argued that “crime does not exist” - a belief he has repeated in later publications. In this article, it is argued that crime is an agreement expressing collective intentionality. As such, the social existence of crime cannot be doubted. Crime is called an agreement because it is rooted in general agreement on (i) basic moral issues connected to evil acts; (ii) the need to have social institutions to protect citizens from specific evil acts; and (iii) a list of acts that citizens should be protected from and that perpetrators may be punished for.
These agreements are based on the fact that human beings are communicative actors, socially connected to each other, with a capacity and need to solve common problems produced by acts challenging peaceful social life where people respect each other’s integrity and property. The category of crime is obviously socially constructed in a very specific sense: Although it is based on firm moral agreements, it is created by citizens who have developed a collective intentionality, a ‘we’, who consciously agree on (ii) and (iii) above, and therefore create social institutions (through legitimate social procedures) empowered to act in accordance with these agreements. The social reality of crime is constituted by the institutionalisation of these agreements, i.e. the empowerment of certain people with means, rights and obligations to protect and punish citizens. Accordingly, crime is not a collection (or list) of certain acts, and exists as a social fact as long as the institutionalisation is maintained.
Maj 2004 - 91. årgang Nr. 2-3
1. Kauko Aromaa:
Crime Trends in Finland from 1980 to 2002.
Trends in crime may be largely explained by variations in three basic dimensions of the crime environment. These are the supply of motivated offenders, the supply of crime opportunities, and the presence or absence of competent control. Depending on the size and overlap of these three factors, variations in the structure and volume of "crime" can be explained. Since the interplay of these factors occurs within the framework of crime definitions, changes in what is criminalized will, of course, change this framework and explain variations emanating from this source. When interpreting crime rates as recorded by control authorities, a further problem must be taken into account: the rate at which crimes are recorded and registered is an important intervening variable that hampers simple interpretations of recorded crime. Since important changes have been periodically observed in all of these factors, extreme caution should be exercised when using official police data to make decisions relevant to criminal policy. Complementary sources of information are presently available that make it somewhat easier to interpret trends in specific forms of crime.
According to available data, the overall crime situation in Finland has changed relatively little during the past 20 years, with the exception of a steady increase in narcotics crime since the early 1990s. Arguments concerning the "ownership" of crime problems and disagreements over which forms of data are best suited for interpretations and policy recommendations has become more marked over time, indicating that criminal policy is becoming increasingly politicised. Crime policy is thus affected more by which camp wins this paradigmatic struggle than it is by the "actual" trends in crime revealed through empirical analysis. Demographic changes in the age of the population mean that older members of society are gaining more weight in policy decision-making, including decisions regarding the definition of criminal policy problems and solutions. This, together with the growing domination of the market ideology, is contributing to the development of a punitive criminal policy that is fast replacing the social welfare model, which dominated at least in the 1960s and 1970s.
2. Flemming Balvig:
Crime Trends in Denmark and the Industrialised World.
The most interesting thing concerning crime trends in Denmark during the last two to three decades is their similarity to trends found in most other industrialised countries. This similarity presents a challenge to the two classical ways of thinking about how to reduce crime: the penal control model and the social welfare model. The penal control model assumes that a large police force and harsh punishments can reduce crime, while the social welfare model is grounded in the assumption that social welfare and equality in earnings can do the same. The effectiveness of both models is challenged by fact that crime trends appear uniform regardless of which model a particular country embraces. A closer analysis shows that the two models are negatively correlated opposites in practise and confirm that neither of them is strongly related to crime levels.
The analysis also show that while the social welfare model seems to be positively related to the feelings of security, the penal control model is correlated with increased fear. These facts are discussed within the context of current political trends in Denmark, where the social welfare model is rapidly loosing ground to the penal control model - as it is in most other industrialised countries. This change is unlikely to affect crime rates, but may well stimulate increased fear of crime and reinforce the social polarisation and social exclusion processes already in motion.
3. Helgi Gunnlaugsson:
Crime in Iceland: Trends and Explanations.
Unlike many other nations in the industrialized West, Iceland until the last decade or so compiled only sketchy information on police, court, and prison activities. This sorry state of affairs has made it difficult for Iceland to be included in international comparisons on crime. According to the admittedly scanty records available, the crime rate for serious offences such as homicide, robbery and aggravated assault remains lower in Iceland than in most Western nations. While intermittent, local crime statistics clearly indicate that substance abuse is a dominant, long-term focus of Icelandic law enforcement, as reflected in rates of driving while intoxicated, public drunkenness and, more recently, drug violations. On the heels of profound societal change in the latter part of the 20th century, more systematic records of crime made available by local authorities indicate that crime has increased, and population surveys suggest that citizen concern has deepened. With the establishment of the National Commissioner of the Icelandic Police in 1997, crime data has been gathered nationally, which will help to facilitate international comparisons on crimes known to the police in the future. As for crime types, the number of cases involving drug violations and sex crimes have increased the most in the past few years while rates of other forms of crime have stabilized.
4. Ragner Hauge:
Trends in Norwegian Crime Since 1980.
Norway began recording criminal statistics in 1835. Between 1835 and 1950, registered crime was characterised by cycles of increase and decrease, each lasting about 10 to 15 years. Since 1955, however, Norway has witnessed a steady increase in registered crime from one year to the next, which is documented in the current paper. This increase seems to have been unaffected by large scale social changes occurring during the move from modernity to late modernity, or by the shift from a humanitarian, rehabilitative crime control perspective to the recent policy of "zero tolerance".
5. Jan Andersson:
Crime in Sweden 1980 to 2003: Trends and Explanations.
Crime levels, actual as well as reported, have increased dramatically in Sweden since WW2. As in other countries, this increase is explained by major changes in urbanisation and economic development. However, there has been no continuous increase in crime since 1990. Theft-related crimes have actually decreased since then. The reasons for this are crime-specific, on the one hand, and structural, on the other. Like many other countries exhibiting similar crime trends, Sweden has suffered an economic stagnation. Nonetheless, the level of reported violent crime continues to increase, partly due to an increase in the consumption of alcohol (which primarily affects street violence) and partly due to an increase in the willingness to report violent crime (mainly among women and children). Official reports concerning some forms of statistically infrequent crime - such as white-collar crime, environmental crime, and agitation of national or ethnic groups - are increasing very dramatically. An important explanation for the increase in official reports of these crimes relates to changing priorities and methods within the legal system. However, this does not mean that the actual levels of these crimes have not increased.
According to self-report surveys juvenile, participation in theft-related crime is decreasing while juvenile violent crime remains relatively stabile. Overall, however, juvenile crime is on the decline.
6. Kirsti Nieminen:
Tommy's Tale - A True Story: Reflections by the Director of a Youth Prison.
Tommy is a 27 year-old Finnish man who is imprisoned for the third time. His story is an illuminating example of gradual social displacement beginning at a very early age. Tommy's antisocial behaviour reflects insufficient or incorrect care received from his primary family; experiences of violence, humiliation, and loneliness; indifference and incompetence on the part of public authorities; and his own substance abuse and need for showing off. Tommy is now going through an intensive community treatment programme in Kerava prison, and is starting to believe in his possibilities to adopt a more pro-social way of living.
The majority of Finnish offenders share Tommy's story in the respect that their criminal careers have not been a sudden choice, but rather the sum of many accumulating negative factors. This fact is to some extent taken into account in the Finnish penal system. A child under 15 years of age cannot be convicted of a crime, but is instead turned over to the child welfare sector. Young offenders from 15 to 21 years of age serve only one-third of their sentences, and do so in a separate young offender's unit. A young offender under 18 years of age is sentenced to prison only for very severe crimes. The more lenient sentencing practise for young offenders is based on the view that unconditional imprisonment increases the probability of recidivism.
Tommy's story so far has had many sad chapters, but luckily it is not too late to change the tale. It is possible to break the cycle of substance abuse and antisocial lifestyle even in prison via treatment programmes that are carefully designed and intensively administered. In order to prevent the sad parts of Tommy's tale from repeating themselves in other children's lives, a comprehensive support system for families is needed. Interventions should begin early, when clear behavioural problems are first noticed. The support system should be built on multi-professional cooperation between public authorities, non-governmental organizations, congregations, and families.
7. Per Ole Träskman:
Changing and unchanging Issues of the General Part of the Penal Law.
The General Part of the penal law is discussed from a recent historical and comparative perspective. As the provisions in the General Part delimit the conditions for convictions, they are necessary supplements to penal provisions concerning the criminalization of a certain act (offence). Disagreements exist about the permanence and the international unity of these general provisions. As for the development of the General Part, it is assumed that the conditions and reflections influencing criminal policy in general also influence innovations of the provisions included in the General Part. The rationality and humanity of these reflections can be discussed, as can the extent to which the General Part reflects emotional and even populist perceptions.
For a long time, the General Part of the penal law has been limited to areas of legal practice and jurisprudence. In some countries, however, the General Part has recently become one of the primary issues of debate among legislators. Finland is an example of this.
Various circumstances shaping the changes of the General Part are discussed. Among these are circumstances related to penal ideology stating that the penal system is founded on blaming, questions of defining the subject who can be blamed (only a natural person, or moral persons or collectives), accentuation of the importance of international human rights, endeavours for international harmonization, and the economy of legal procedure.
Finally, trends within some specific areas of the General Part are discussed. These include the definition of an act, the question of penal jurisdiction, criminalization of preparation, attempt and conspiracy, criminalization of participation, reasons for excluding grounds of legal justification or guilt, prescription, and the measurement of sentences.
8. Erling Johannes Husabø:
Counter-terrorism and the criminal law.
The fight against terrorism has altered the character of the criminal law. Through Resolution 1373 and the blacklisting of suspected terrorists, the UN Security Council has furthered a globalisation of countermeasures. A European harmonization is promoted by the European Union, especially through the framework decision on combating terrorism. The new criminal provisions are characterized by a broad criminalization of preparatory acts, a wide definition of terrorism, and the distinctive role of the subjective elements of the crime (the terroristic aim). Together, this raises tensions in regard to the principle of legality. The blacklisting of terrorists by the UN and the EU (resulting in the freezing of assets) is in fact a quasi-criminal measure, with a clear lack of legal safeguards for suspected individuals. The present system of international blacklisting infringes on both the presumption of innocence and on the right of access to court. The difficulty of combining effective counter-terrorism measures with respect for basic principles of law is a challenge to criminal law professionals. Since important decisions are taken at the international level, we should contribute to an international debate on these urgent matters.
9. Thomas Elholm:
Current Developments in European Criminal Law and Judicial Cooperation.
Until recently, the harmonisation of the substantive criminal law was one of the primary foci within the EU. That focus has now shifted to cooperation on criminal matters between police and judicial authorities. A number of framework decisions have been proposed and issued. This article describes the primary features of these decisions, beginning with the Principle of Mutual Recognition. According to this principle, decisions made by courts or judicial authorities in one EU state must be recognised and executed by all other EU states. The advantages and disadvantages of cooperation on criminal matters are examined. From a Nordic perspective, there is worry that harmonisation could increase repression. The primary Nordic concern in regard to cooperation in criminal matters is how to guarantee the protection of human rights. Yet even if human rights are ultimately guaranteed, cooperation on criminal matters raises an additional problem: Cooperation could increase the need for harmonisation and thereby increase the pressure for further repression in the Nordic countries.
10. Tapio Lappi-Seppälä:
Trends in Penal Sanctions in Finland.
The most important long-term change in Finnish sanctioning policy has been the decrease in the rate of imprisonment. At the beginning of the 1950s, the incarceration rate in Finland was four times higher than the average for the rest of Scandinavia. By the early 1990s, the Finnish rate had declined to Nordic levels of around 55-60 prisoners per 100 inhabitants. Yet during the last three years the number of prisoners has increased again, this time by 30%. For the moment, however, this trend seems to have stalled.The sanctioning system was subject to a series of partial reforms during the 1970s in the spirit of "humane neo-classicism". During the 1990s, the relatively simple Finnish sanctioning system was supplemented with new community sanctions. An experiment with community service started in 1992. By 1995 it had proved so successful that it was adopted as a permanent part of the sanctioning system. An experiment with juvenile penalties began in 1995. Experiences from this project will be taken into account in connection with a total reform of the juvenile justice system, which is now in preparation.
The implementation of both community service and juvenile penalties has clearly demonstrated the need for further supplementing the sanctioning system with measures suited for persons suffering from alcohol and drug abuse problems. Plans for a new type of sanction - contract treatment - are ready and waiting for implementation (and financial resources).
The nature and purpose of the prison sentence have undergone gradual change, reflecting both the results of new rehabilitation research and the fact that more prisoners are suffering from severe drug and intoxicant problems. As a result, Finnish prisons have increased levels of drug testing and supervision. The supply of intoxicant rehabilitation programs has increased, and new targeted cognitive-oriented activity programs (cognitive skills, anger management, and programs for sexual offenders) have been introduced. One purpose of the upcoming overhaul of the prison law is to specify the aims and content of sentence enforcement, as well as the constitutional rights of prisoners.
11. Ragnheidur Bragadóttir:
Trends in Penal Sanctions in Iceland.
The discussion of criminal policy matters has increased in Iceland in recent years. There has been a tendency towards more severe punishment. Yet at the same time, new sanctions have been introduced to the criminal justice system, which in some cases replace imprisonment. New sanctions include alcohol and drug treatment during sentences of imprisonment in closed institutions, sentences of imprisonment and probation in open institutions, and community service. This article describes recent developments in the Icelandic criminal justice system as they relate to both new sanctions and traditional ones - such as suspended sentences and parole supervision.
12. Magnus Matningsdal:
Recent developments in penal sanctions in Norway.
In recent years, there has been political pressure to increase the level of punishment in Norway - especially in regard to crimes of violence and sex, and those concerning extensive and repeated property crime. Several legislative amendments have been passed with this in mind. The consequences of these amendments have been harder sentences and an increasing number of inmates. At the same time, it has been emphasized that these more punitive sentences should be applied specifically to the more aggravated crimes. Alternative custodial reactions have therefore been developed for use in less serious cases, including community punishment. Community punishment, which replaced community service in 2002, provides a completely different set of possibilities for adjusting penal sanctions to specific convicted offenders. Moreover, during the last few years, the trial system has introduced suspended sentences for drunken drivers with alcohol problems who would otherwise receive sentences of imprisonment. Those given a suspended sentence are expected to attend an educational program and are put in contact with treatment authorities. The decision to grant a conditional sentence/community punishment to those who would otherwise qualify for imprisonment is heavily influenced by whether the offender is considered to be in a period of rehabilitation.
13. Agneta Bäcklund & Peter Lundkvist:
Trends in Penal Sanctions in Sweden.
This article begins with an introductory summary of the development and current state of the Swedish penal sanctioning system. The most significant, recent amendments to penal legislation were made in connection with the reform of the system in 1999. One important change at this time provided for extended possibilities to use "community sanctions", chiefly community service. Another concerned the permanent introduction of close supervision with electronic monitoring as a method for enforcing shorter prison terms. The reform also entailed amendments of the sanctioning system inter alia in relation to juvenile offenders. The Swedish legislation in this area contains few restorative elements.
In the future additional amendments to the Swedish penal sanctioning system can be expected. In particular, these concern juvenile and mentally disordered offenders, respectively, as well as persons convicted to imprisonment. One central question for these groups relates to the enforcement of correctional treatment - whether carried out in closed or open institutions. Furthermore, a review of the sanctioning system in general has been recently initiated. Currently, the most discernable trend in the crime policy area concerns a change in focus from repressive measures towards actions to prevent recidivism, inter alia through emphasizing measures that ensure care or treatment during the enforcement of penal sanctions.
September 2004 - 91. årgang Nr. 4
1. Vagn Greve:
From Law of Legal Measures to Criminal Law? Trends in Danish Penal Sanctions.
Danish criminal law traditionally applies a formal concept of 'punishment'. The author advocates a material concept instead. A consequence of this change is that a large number of administrative and civil sanctions must honour the fundamental principles of criminal law.
2. Nils Christie:
Punishment as a Problem.
Punishment means suffering, intended as suffering. It is with this insight that most societies put limits to its use. The delivery of pain has to be limited by arrangements that activate a broad range of values in society - also values as kindness and restraint on vengeance. Some might argue: We have to react against crime, all sorts of crime. My suggestion would be: Crime is a social construction. Acts with the potential of being seen as crimes are like an unlimited natural resource. The essence of crime prevention would be to create social conditions that minimize the occurrence of unwanted acts, and also to minimize the possibility that unwanted acts – if they occur - are given the meaning of being crimes.
3. Jørn R.T. Jacobsen:
General Deterrence and Punishment.
This paper addresses the discussion concerning factual knowledge on general deterrence. It seeks to give a brief overview of recent findings in empirical research on general deterrence in light of the late Johs. Andenæs’ contributions to the discussion. In short, though there are reasons to believe that the existence of a criminal justice system in itself has a general deterrent effect, the empirical research gives reasons for being sceptical when it comes to increasing the level of punishment in order to achieve a general deterrent effect. Furthermore, while there has been a great amount of empirical research, the question as to how empirical knowledge on general deterrence should relate to legal argumentation has not been given the same attention: What kind of empirical support is required for legal argumentation about general deterrence to be legitimate?
4. Ragnhild Sollund:
Speciesism – the Basis and Consequences of Discrimination Based on Species.
Speciesism is defined as a prejudice that gives priority to human beings over non-human animals. In spite of animal protection legislation, the animals that are used in factory and fur farming, as well as research, seem to be without legal protection. This article discusses the basis for speciesism in order to establish whether mechanisms like social and physical distance, industrialization, and alienation facilitate the abuse of animals. Human beings’ ways of treating “the others” are thereby central to the article.
December 2004 - 91. årgang Nr. 5
1. Lars Emanuelsson Korsell:
Punishment and Self`-Regulation against Corporate Crime.
Corporate and white-collar crimes, or economic crime in the Scandinavian vocabulary, are very serious because they undermine trust. Trust is of fundamental importance in modern society because it is impossible to supervise behaviour in a complex environment. Because economic crimes are committed in organization by established persons and integrated with legal work, the offences are difficult to discover and investigate. Given that only few offences are prosecuted, it is necessary to supplement traditional law enforcement with preventive strategies in order to encourage compliance
A proper starting point for such strategies is to consider what we know about why people commit crime and why they obey the law. This knowledge suggests that punishment is actually less important for obtaining compliance than are reasonable legislation and relevant measures instituted by regulatory agencies. Self-regulation, especially enforced self-regulation, could also be an important tool. But we should not forget sanctions, and we should remember that it can be effective to punish legal entities as well as natural persons.
In sum, we need to use a regulatory mixture of information, service and self-regulation, control and punishment. Corporations and their representatives are different and therefore indicate the use of different tools for obtaining compliance.
2. Paulina Tallroth:
Language and International Jurisprudence.
Native language has an important impact on the verbal expression of societal rules and thus upon the written law. Yet the influence of language has rarely been considered in the international jurisprudence of the European Court of Human Rights, the European Court of Justice, and the European Human Rights Committee. This article examines language and its implications in the case law of the aforementioned supervisory bodies. The analysis reveals that cases involving the component of language can be split into three categories: 1) Those lacking knowledge of language as an obstacle for being put up for election, 2) those lacking knowledge of language as an obstacle for obtaining work, and 3) those where language is interpreted as an element of a fair, linguistically comprehensible trial. The article concludes that language has generally been recognised as an instrument for the realisation of other fundamental rights - e.g., participatory political rights, the right to work and the right to a fair trial - as opposed to as a right itself. Nevertheless, it seems likely that the increase in international exchange and cooperation in our global world will require that more attention be paid to language in the future – not least in the areas of legislation and jurisprudence.
3. Robert Andersson:
The Re-Emergence of the Treatment Idea: From Psychoanalysis to Cognitive Programmes.
Rehabilitation is making a comeback as a crime prevention strategy. The new epistemology of rehabilitation is based upon the theories and practices of the cognitive behavioural therapy ideal. In this article I attempt to scrutinize this new epistemology employing Michel Foucaults governmentality perspective. I thereby focus on rehabilitation as an element in governance. I start by giving a brief account of the history of the epistemologies of the individualisation sciences. Through their studies of the human individual, and the epistemologies thereby produced, these sciences have played a part in the creation of the object of governance, the individual, and of the ways this governance of individuals is practised. In my examination I look to certain features that I argue are fundamental to it. These features, such as an assumption of some level of free will and a rationale of risk, all come together in producing a new political subject. What I find is that the hierarchical surveillance techniques of the old rehabilitation models are replaced by a horizontal form of surveillance aimed at making the subject see the “obvious” fact that a “normal” person is responsible of his or her actions. What is sought after is a form of self-knowledge, available through the confession of one’s faults, which is to be realized through the care of oneself and self-management. The goal of this process is the production of a prudent citizen capable of constituting part of the governmental visions of advanced liberalism.