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The right to be punished


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  • 1. Punishment as Part of Modern CriminalLaw Theory 1Contents1.1 The Origins of Punishment ................................................................. 11.2 The Formal Part of Punishment in Modern Criminal Law Theory ....................... 71.2.1 Punishment as Part of the Structure of the Offense ............................... 71.2.2 Punishment as an Indication of the Severity of the Offense ...................... 91.3 The Substantive Integration of Punishment into Criminal Law Theory ................. 111.3.1 Applicability of Criminal Law Principles to Punishment ........................ 111.3.2 Balancing and Completing the Imposition of Criminal Liability ................ 121.1 The Origins of PunishmentAn integral part of any criminal law theory is punishment. Criminal law theoryincludes not only the law for imposing criminal liability but also the law ofpunishment. Punishment is the infliction of suffering on the offender for commit-ting an offense. As discussed below, this definition is based on a retributive view ofpunishment. Three other views look at punishment from the perspective of deter-rence, rehabilitation, and incapacitation. The type of punishment may vary indifferent societies and at different times, but its essence, an expression of condem-nation for the commission of an offense, remains constant.Not all infliction of suffering is punishment, only when the suffering comes as asocial reaction to the commission of an offense.1To formalize this type of socialreaction, it was necessary to develop a due process of law as a condition forimposing punishment. Imposition of punishment is considered the last resort(ultima ratio) available to the society in response to the offender’s behavior. It isalso the last resort of the prevailing public order in society and among individuals.Punishment (as part of criminal law) is the extreme expression of social control,especially of legal social control, after all other social mechanisms have failed.1Jerome Hall, General Principles of Criminal Law 296–324 (2nd ed., 1960, 2005).G. Hallevy, The Right to Be Punished, DOI 10.1007/978-3-642-32388-1_1,# Springer-Verlag Berlin Heidelberg 20131
  • 2. When other social mechanisms of socialization (family, school, etc.) fail toprevent an individual from committing an offence, and no internal limits are setin the offender’s mind, it is necessary to activate the most extreme social instrumentof social control: punishment within the framework of criminal law. Criminal lawenters the picture when an offense is committed and criminal liability is imposed onthe individual. To complete the process, punishment must be imposed.Criminal law imposes punishment for offending, but it grants no “prize” toindividuals who do not offend. Individuals who do not offend are not active objectsfor criminal liability. There are some other spheres of law, however, that may grant“prizes” for certain behaviors. For example, tax law may offer lower levels oftaxation for certain acts, causing some individuals to prefer these acts. By contrast,criminal law offers no positive incentives, only negative ones, and these negativeincentives are generally expressed as punishments, in addition to other attributes ofthe criminal process, such as shame, loss of time and money, etc.The origins of punishment are rooted in the prehistory of criminal law, in thePaleolithic age, when punishment developed in three ways.2The first was throughsocial organization. Initially humanoids were socially organized around a naturalleader who determined what is “right” and “wrong.” When a “wrong” wascommitted, the leader had the power and the legitimacy needed to punish theoffender. Most sanctions were ostracism and expulsion from the group. Althoughthis organization was not stable, it was the first step toward a stable regime becauseit enforced discipline on its members.3The second means was through religion, whose main function at that time was toprotect the group from harmful objects and to provide explanations of everydayoccurrences. Religions set rules for “right” and “wrong” and imposed sanctionswhen a “wrong” was committed. The third form was the use of various instrumentsthat caused bodily damage to other persons. In the Paleolithic age, poisons andstone weapons were already known.4At the beginning of the Mesolithic age larger social organizations evolved,mostly small villages that were populated throughout the entire year.5As we canglean from burial arrangements (e.g., some people are buried with jewels in certainplaces, whereas others are not), the social status of individuals was commonlylayered in these villages.6A higher social status was gained through the2Chris Scarre, The Human Past: World Prehistory and the Development of Human Societies(2005); Chris Gosden, Prehistory: A Very Short Introduction (2003).3Maureen A. Hays and Paul T. Thacker, Questioning the Answers: Re-Solving FundamentalProblems of the Early Upper Palaeolithic (2001); Olga Soffer and N. D. Praslov, From Kostenki toClovis: Upper Paleolithic - Paleo-Indians Adaptations (2001).4Bernard Wailes, Craft Specialization and Social Evolution: In Memory of V. Gordon Childe(1996).5Steven Mithen, After the Ice: A Global Human History 20,000–5,000 BC (2003).6Sylvie Philibert, Les Derniers “Sauvages”: Territoires Economiques et Systemes Techno-fonctionnels Mesolithiques (2002); J. V. S. Megaw, Hunters, Gatherers and First Farmers BeyondEurope: An Archaeological Survey (1977).2 1 Punishment as Part of Modern Criminal Law Theory
  • 3. commission of public offices in the village, including the determination of rules ofbehavior and the imposition of sanctions when the rules were breached.At the same time, in the Mesolithic age a process of urbanization began, asvillages formed into cities. The growth of the cities and of their populations made itnecessary to determine wider rules of “right” and “wrong” and an efficient systemof enforcement of these rules. The ensuing system became substantively similar tomodern criminal law, with enforcement being part of the sentencing process.Religion also played an important role in determining these basic rules, in theirenforcement, and in the development of moral principles.7In the Neolithic age the social organization became much more complex. Socialhierarchy was already common, and in some places regional or central regime havealready been established. The engineering projects carried out during this agerequired high organizational discipline, which could be enforced only throughefficient measures such as sentencing and punishment.8Most inhabitants consid-ered the legal order of the cities attractive and wished to move into the cities. Themain condition for acceptance into the city was conforming to the rules of behavior,and implicitly, accepting punishment.In the Chalcolithic age the metropolis came into being. The metropolis func-tioned both as a commercial and as a religious center. At this time religious andcriminal law were synonymous. Religion was the only legitimate source of criminallaw, and therefore also the only basis for punishment. The offender was considereda sinner, and offending against the society was synonymous with offending againstthe gods. As the gods prohibited harming society, any harm to society was a crimeagainst the gods. Because offending was considered to arouse the wrath of the gods,offenders were deemed impure.Impurity was considered infectious, the same as a disease, and thereforeoffenders were expelled from the city. An offender who was considered impurehad to undergo a process of purification and atonement through a series ofpunishments. Many European languages still bear testimony to this approach, asthe stem “pu,” the philological source of “purity,” is also the source of “punish-ment.” Punishment was considered to be a purifying measure.In early Mesopotamian law there were various criminal punishments. Capitalpenalty was most common,9carried out by drowning, fire (based on the analogy of7James Mellaart, Earliest Civilizations of the Near East 81–101 (1965); Louis Mumford, The Cityin History (1961); Colin Wilson, A Criminal History of Mankind 103–104 (2nd ed., 2005).8Peter Bellwood, First Farmers: The Origins of Agricultural Societies (2004).9Russ VerSteeg, Early Mesopotamian Law 126 (2000); G. R. Driver and John C. Miles, TheBabylonian Laws, Vol. I: Legal Commentary 495–496 (1952): “The capital penalty is most oftenexpressed by saying that the offender ‘shall be killed’. . .; this occurs seventeen times in the thirty-four sections. A second form of expression, which occurs five times, is that ‘they shall kill’. . . theoffender”.1.1 The Origins of Punishment 3
  • 4. the sacrifice by fire),10skewering,11etc. Mutilation was also common, and itinvolved various organs (hands, ears, tongue, breasts, eyes), with a symbolicconnection between the organ and offense. For example, if the offender used hishands to commit the offense, he was punished by mutilation of his hands. In somecases acceptable punishments included economic sanctions,12exile,13expulsion,and flogging.14Punishments were carried out differently for men and women. For example, menwere thrown into the water with their hands tied,15whereas women were not tiedup, unless the offense was adultery and the woman was caught with her lover, inwhich case she and her lover were tied up together and thrown into the water toexpunge their sin.16The criminal law of early Mesopotamia did not accept impris-onment as a legitimate punishment but only as a measure to collect debts in civilaffairs.17The criminal law of ancient Greece accepted two types of punishment: physical(pathein) and economic (aposteisai). It was the prosecutor who asked to punish theoffender, but punishment was limited by the law.18For Athenian citizens physicalpunishments included capital penalty and deprivation of civil rights (atimia),10Law 25 of the Code of Hammurabi (L. W. King trans.) provided: “If fire breaks out in a house,and some one who comes to put it out cast his eye upon the property of the owner of the house, andtakes the property of the master of the house, he shall be thrown into that self-same fire”; Law 110of the Code of Hammurabi (L. W. King trans.) provided: “If a ‘sister of a god’ opens a tavern, orenters a tavern to drink, then shall this woman be burned to death”; Law 157 of the Code ofHammurabi (L. W. King trans.) provided: “If any one be guilty of incest with his mother after hisfather, both shall be burned”.11Law 153 of the Code of Hammurabi (L. W. King trans.) provided: “If the wife of one man onaccount of another man has their mates (her husband and the other man’s wife) murdered, both ofthem shall be impaled”.12Versteeg, supra note 9, at p. 127; Driver and Miles, supra note 9, at pp. 500–501.13Versteeg, ibid, at p. 127; Law 154 of the Code of Hammurabi (L. W. King trans.) provided: “If aman be guilty of incest with his daughter, he shall be driven from the place, exiled”.14Versteeg, ibid, at p. 127; Law 202 of the Code of Hammurabi (L. W. King trans.) provided: “Ifany one strikes the body of a man higher in rank than he, he shall receive 60 blows with an ox-whipin public”.15Samuel Greengus, Legal and Social Institutions of Ancient Mesopotamia, 1 Civilizations of theAncient Near East 469, 474 (Jack M. Sasson ed., 1995).16Law 108 of the Code of Hammurabi (L. W. King trans.) provided: “If a tavern-keeper (feminine)does not accept corn according to gross weight in payment of drink, but takes money, and the priceof the drink is less than that of the corn, she shall be convicted and thrown into the water”; Law 133of the Code of Hammurabi (L. W. King trans.) provided: “If a man is taken prisoner in war, andthere is sustenance in his house, but his wife leaves house and court, and goes to another house:because this wife did not keep her court, and went to another house, she shall be judiciallycondemned and thrown into the water”; Law 143 of the Code of Hammurabi (L. W. King trans.)provided: “If she is not innocent, but leaves her husband, and ruins her house, neglecting herhusband, this woman shall be cast into the water”.17H.W.F. Saggs, The Greatness That Was Babylon 194 (1962).18Stephen C. Todd, The Shape of Athenian Law 139 (1995).4 1 Punishment as Part of Modern Criminal Law Theory
  • 5. including the right to be buried in Athenian territory. For other offenders physicalpunishments included slavery as well. Exile and expulsion (phuge) were substitutedfor capital penalty in circumstances that called for leniency.19The capital penalty was carried out by throwing the offender into a pit(barathron).20For Athenian citizens convicted of lesser crimes, this practice wasreplaced in the fourth century BC by poisoning a punishment, considered to mini-mize the suffering of the offender,21or by a method that resembled Romancrucifixion, in which the offender was confined to a place and denied water orfood (apotumpanismos).22Economic punishment consisted mainly of confiscation of property and fines.Confiscation was considered more severe than fines, and it was used only in rarecases.23The fine was much more common. The maximum rate of the fine wasdetermined by law, but the prosecutor and the offender had the opportunity to arguefor an appropriate fine in individual cases.24But the criminal law of ancient Greecedoes not clearly distinguish between criminal fine (paid to the state) and civildamages (paid to the injured plaintiff), and uses the same terminology for theseremedies.25Roman law did not accept any general theory of sentencing. Different rules andcustoms developed in relation to different offenses. For example, punishment forproperty offenses was generally economic, and it included fines26or a combinationof exile and confiscation.27In homicide offenses the common punishment rangedfrom exile and confiscation28to capital penalty and confiscation.29In sexualoffenses common punishments were fines,30annulment of marriage,31revoking19Russell Meiggs and David M. Lewis, A Selection of Greek Historical Inscriptions to the End ofthe Fifth Century BC 52 (1988); Charles W. Fornara, Archaic Times to the End of thePeloponnesian War 103 (2nd ed., 1983).20Todd, supra note 18, at p. 141.21Christopher Gill, The Death of Socrates, 23 CQ 25 (1973).22I. Barkan, Capital Punishment in Ancient Athens (1935); Louis Gernet, Sur l’exe´cutionCapitale: a` propos d’un Ouvrage Re´cent, 37 REG 261 (1924); Louis Gernet, The Anthropologyof Ancient Greece (1981).23Todd, supra note 18, at pp. 143–144.24Alick Robin W. Harrison, The Laws of Athens 173–175 (1968).25Douglas M. MacDowell, The Law in Classical Athens 257 (1978).26Digesta, 47.21.1; Modestinus, 8 reg; Codex Justinianus, Mosaicarum et Romanarum Legum, 8.5.1; Digesta,; Modestinus, 3 depoenis.28Digesta,; Pauli Sententiae,, 48.9.1,3.30Digesta,; Ulpian, reg. 16.2; Pauli Sententiae,, 34.9.13; Papinian, 32 quaest.1.1 The Origins of Punishment 5
  • 6. of legal competence,32and since the third century AD capital penalty if a person waskidnapped for sexual purposes.33In offenses against national security, including high treason, the punishment wascapital penalty and confiscation, regardless the offender’s social or personalstatus.34After the codification of Roman law in the sixth century AD, the customsof punishments of the Justinian Code became the legal basis for sentencing inEurope during the Middle Ages and throughout the modern times. Roman lawcontinued its development through the Canon law until it was assimilated in thenational laws of the European states. The Canon law widened the common types ofpunishments to ostracism and social excommunication.35After the rise of thenational states in Europe, these embraced the common sentencing that waswidespread at the time, based on the Roman law and Canon laws.After the World War II, the European-Continental legal systems limited the useand legality of capital penalty and emphasized more humane punishments. Germanlaw abolished the capital penalty in 1949 constitutionally.36The two main types ofpunishments since then are imprisonment (Freiheitsstrafe)37and fine (Geldstrafe).38Other less common but acceptable punishments include probation and deprivationof civil rights (e.g., prohibition from driving).39French law abolished the capitalpenalty in 1981, and the two main punishments are imprisonment (emprisonnement)and fine (amende). Other less common but acceptable punishments include publicservice (travail d’inte´reˆt ge´ne´ral).40There is no uniformity in sentencing among the Anglo-American legal systems,especially not with regard to capital penalty. In Britain the capital penalty wasabolished by statute in 1965 in relation to homicide.41General considerations forsentencing were determined by statute in 2003.42In the United States sentencing isdetermined mainly by the states, and it includes mostly various types of imprison-ment and fines. The capital penalty is legal in some of the states, where some32Digesta, 22.5.14; Papinian, de adulteriis; Ulpian, 1 ad Sab.33Digesta,; Codex Theodosianus, 11.36.4; Codex Justinianus, 9.9.9,, J. Pospishil, Eastern Catholic Church Law 745–757 (2nd ed., 1996); Richard H.Helmholz, The Spirit of Classical Canon Law 366–393 (1996).36Grundgesetz, Art. 102.37Article 38 of the German Penal Code provides: “(1) Die Freiheitsstrafe ist zeitig, wenn dasGesetz nicht lebenslange Freiheitsstrafe androht; (2) Das Ho¨chstmaß der zeitigen Freiheitsstrafeist fu¨nfzehn Jahre, ihr Mindestmaß ein Monat”; Article 39 of the German Penal Code provides:“Freiheitsstrafe unter einem Jahr wird nach vollen Wochen und Monaten, Freiheitsstrafe vonla¨ngerer Dauer nach vollen Monaten und Jahren bemessen”.38See articles 40–43 of the German Penal Code.39See article 44 of the German Penal Code.40See articles 131-1 and 131-3 of the French Penal Code.41Murder (Abolition of Death Penalty) Act, 1965, c.71.42Criminal Justice Act, 2003, c.44.6 1 Punishment as Part of Modern Criminal Law Theory
  • 7. constitutional questions have been raised about its legality. It has been argued thatcapital penalty contradicts the 8th Amendment of the United States Constitutionprohibiting “cruel and unusual punishment.”43The constitutional questions relate both to the idea of capital penalty and to themethods used in its execution, including electricity,44hanging,45firing squad,46andlethal gas or injection.47The Supreme Court of the United States ruled that theimposition of capital penalty or its execution does not contradict the 8th Amend-ment. The Supreme Court ruling is based also on the English common law.481.2 The Formal Part of Punishment in Modern Criminal LawTheoryPunishment is an integral part of modern criminal law theory, both formally andsubstantively. It is formally integrated in modern criminal law theory by being partof the structure of the offense and by serving as an indication of the severity of theoffense, as discussed below.1.2.1 Punishment as Part of the Structure of the OffenseAccording to the principle of legality in criminal law, the structure of the offensemay be described as a valid conditional clause, the result of which is a criminalsanction.49For example, the offense of theft may be analyzed as follows50:43The 8th amendment of the United States Federal Constitution provides: “Excessive bail shall notbe required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.44In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Provenzano v. Moore, 744So.2d 413 (Fla. 1999).45Dutton v. State, 123 Md. 373, 91 A. 417 (1914); Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994).46Wilkerson v. Utah, 99 U.S. (9 Otto) 130, 25 L.Ed. 345 (1878).47People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911 (1953); Gray v. Lucas, 710 F.2d 1048 (5thCir. 1983); Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995).48Gregg v. Georgia, 428 U.S. 153, S.Ct. 2909, 49 L.Ed.2d 859 (1979): “. . .imposition of the deathpenalty for the crime of murder has a long history of acceptance both in the United States andEngland”.49Gabriel Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law 16–17 (2010).50See examples for theft offenses, e.g., in Britain article 4(2)(b) of the Theft Act, 1978, c.31provides: “A person convicted on indictment shall be liable- (a). . . (b) for an offence underSection 3 of this Act, to imprisonment for a term not exceeding two years”; in Germany subsection242(1) of the German Penal Code provides: “Wer eine fremde bewegliche Sache einem anderen inder Absicht wegnimmt, die Sache sich oder einem Dritten rechtswidrig zuzueignen, wird mitFreiheitsstrafe bis zu fu¨nf Jahren oder mit Geldstrafe bestraft”; and in France article 311-3 of theFrench Penal Code provides: “Le vol est puni de trois ans d‘emprisonnement et de 45,000 eurosd‘amende”.1.2 The Formal Part of Punishment in Modern Criminal Law Theory 7
  • 8. valid conditionalclausecriminalsanctionshall be punished with imprisonment of not more than three years.if thenWhoever stealsThe offense contains two parts: a valid conditional clause (the “if” part), and thecriminal sanction that embodies the punishment (the “then” part). In the aboveexample, the offense states that if you steal, then you will be punished withimprisonment of not more than 3 years. Thus, the criminal sanction is an integralpart of the offense, and both parts are required to identify the offense. (This is one ofthe reasons why the Biblical commandment “Thou shalt not kill”51is not recognizedas an offense: the commandment does not contains an explicit criminal sanction.)The centrality of the punishment within the structure of the offense is incontro-vertible.52Most legal systems refer to this area of law by names that indicate thecentrality of the sanction, as for example, “Penal Law” in English, “Strafrecht” inGerman, and “Droit Pe´nal” in French. Some scholars identify the criminal law withthe sanction,53but the punishment does not stand alone and must necessarily followfrom a valid conditional clause, as noted above. The centrality of punishmentrequires that criminal law distinguish it from civil sanctions, administrativesanctions, and disciplinary sanctions, all of which are achieved by different legalprocesses, outside the criminal process.Furthermore, it requires that punishment be distinguished as a negative incentivefrom any positive incentives. This is the basic distinction between reward andpunishment. If we defined punishment as causing suffering, worsening of theindividual’s state, or narrowing his rights, punishment would appear to be relative.An act that some people would interpret as a punishment, others may find to be areward.For example, imprisonment may be interpreted as punishment by most people,but for an aging offender who had spent more than 40 years in prison and who hasnothing to do outside, returning to the prison, being among his friends, within afamiliar shelter that provides food and social status, imprisonment is not necessarilya punishment. In certain situations punishment can be interpreted as a positiveincentive, as discussed below.54The relativity of punishment, in this context, is manifest not only at the individuallevel but at the social level as well. A punishment in the eyes of one society may be51Exodus 20:13.52See, e.g., George P. Fletcher, The Grammar of Criminal Law – American, Comparative andInternational, Volume One: Foundations 69–73 (2007).53Jerome Hall, General Principles of Criminal Law 296–321 (2nd ed., 1960, 2005).54Below at paragraph 1 Punishment as Part of Modern Criminal Law Theory
  • 9. interpreted as a reward in the eyes of another. Thus, causing the death of a person isconsidered a punishment in most societies, but in some societies it may be consid-ered an honor and a reward. For example, human sacrifices in the Aztec society werehonored together with their families.55Thus, “punishment” and “reward” are not tobe measured objectively but only through the prisms of both individual and socialrelativity.1.2.2 Punishment as an Indication of the Severity of the OffenseIn addition to its structural function, discussed above, the punishment included in theparticular offense has substantive functions as well, one of which is to indicate theseverity of the offense from the point of view of society. The greater the aversionof society to the offense is, the harsher the punishment that the offense includes.A severe offense is indicated by the punishment imposed for committing it. In mostlegal systems manslaughter is considered more severe than theft because it carries aharsher punishment, signaling that society has a greater aversion to manslaughterthan to theft.The stronger the aversion of society to the commission of the offense, the moreresources society is willing to invest in order to prevent the occurrence of theoffense. Punishment serves as an indication of the extent of this aversion. Forexample, the cost of placing a person in custody for a long period of time, asrequired by a severe punishment, is higher than the cost of custody for a shorterperiod of time. Society is, therefore, willing to pay the higher costs because of itsgreater aversion to the commission of the offense. The extent of the aversion canalso be indicated ex ante by means of the punishment included in the offense, so thatthe punishment that indicates the severity of the offense is also used to classifyoffenses by their severity. Different legal systems use different types ofclassifications.Until 1967, the English common law used to classify offenses into threecategories: treason (a severe offense that was considered treason against the Kingeven if the offense was not related to national security), felony, and misdemeanour.The distinction between treason and felony derives from the feudal law of theMiddle Ages, when it was used to distinguish between offenses committed on theKing’s soil and those committed on other territories.56In 1967, the British Parlia-ment abolished the distinction,57and the new law regards all offenses as55Frances F. Berdan, The Aztecs of Central Mexico: An Imperial Society (2nd ed., 2005).56Wayne R. LaFave, Criminal Law 34 (4th ed., 2003).57Section 1 of the Criminal Law Act, 1967, c.58 provides: “(1) All distinctions between felony andmisdemeanour are hereby abolished. (2) Subject to the provisions of this Act, on all matters onwhich a distinction has previously been made between felony and misdemeanour, including modeof trial, the law and practice in relation to all offences cognizable under the law of England andWales (including piracy) shall be the law and practice applicable at the commencement of this Actin relation to misdemeanour”.1.2 The Formal Part of Punishment in Modern Criminal Law Theory 9
  • 10. misdemeanors, but classifies them into arrestable and other offenses; arrestableoffenses carry a maximum penalty of 5 years or more of imprisonment.58American law distinguishes between felonies and misdemeanors. Felonies carrycapital punishment or imprisonment in state prison; misdemeanors are all otheroffenses. The borderline between the two is a maximum penalty of imprisonment of1 year: felonies are punishable with 1 year of imprisonment or more, whereasmisdemeanors are punishable with less. In some courts this classification is flexi-ble,59but all courts in the United States use this classification both in procedural andsubstantive contexts.60French Law classifies offenses into three types: crimes, de´lits, andcontraventions.61German Law classifies all offenses into severe (Verbrechen)and light (Vergehen). The borderline between them is a maximum penalty ofimprisonment of 1 year or more.62Offenses punishable by fines are consideredVergehen. The German penal code of 1871 also contained a type of very lightoffenses, U¨bertretungen. This classification was abolished in 1975, and the offensesit covered became the administrative offenses of Ordnungswidrigkeiten.63The newclassification is used in Germany both in procedural and substantive contexts.6458Section 2 of the Criminal Law Act, 1967, c.58, as amended by section 24 of the Police andCriminal Evidence Act, 1984, c.60, defines “arrestable offence” as “for which the sentence is fixedby law or for which a person (not previously convicted) may be sentenced for a term of five years(or might be so sentenced but for the restrictions imposed by s. 33 of the Magistrates’ Courts Act1980), and to attempts to commit any such offence”. See in addition section 3 of the Criminal LawAct, 1977, c.45.59State v. Nagel, 98 Idaho 129, 559 P.2d 308 (1977); Rivett v. State, 578 P.2d 946 (Alaska, 1978);United States v. Schutte, 610 F.2d 698 (10th Cir.1979); Commonwealth v. Rhodes, 920 S.W.2d531 (Ky.App.1996).60Smith v. Hern, 102 Kan. 373, 170 P. 990 (1918); Pierce v. State, 96 Okl.Cr. 76, 248 P.2d 633(1952); State v. Merrifield, 180 Kan. 267, 303 P.2d 155 (1956).61Article 111-1 of the French Penal Code provides: “Les infractions pe´nales sont classe´es, suivantleur gravite´, en crimes, de´lits et contraventions”. The penalties for crimes are in articles 131-1,131-2, 131-10 and 131-11 of the French Penal Code, the penalties for de´lits are in articles 131-3 to131-11, and the penalties for contraventions are in articles 131-12 to 131-18.62Section 12 of the German Penal Code provides: “(1) Verbrechen sind rechtswidrige Taten, dieim Mindestmaß mit Freiheitsstrafe von einem Jahr oder daru¨ber bedroht sind; (2) Vergehen sindrechtswidrige Taten, die im Mindestmaß mit einer geringeren Freiheitsstrafe oder die mitGeldstrafe bedroht sind; (3) Scha¨rfungen oder Milderungen, die nach den Vorschriften desAllgemeinen Teils oder fu¨r besonders schwere oder minder schwere Fa¨lle vorgesehen sind,bleiben fu¨r die Einteilung außer Betracht”.63Gesetz u¨ber Ordnungswidrigkeiten (BGBl. I, S. 602).64Volker Krey, Deutsches Strafrecht Allgemeiner Teil, Teil I: Grundlagen 133–138 (2002).10 1 Punishment as Part of Modern Criminal Law Theory
  • 11. 1.3 The Substantive Integration of Punishment into CriminalLaw TheoryThe centrality of punishment in criminal law naturally requires its integration intocriminal law theory. There are several aspects to this integration. The substantiveintegration of punishment in criminal law theory includes both the applicability ofthe principles of criminal law to punishment and the balancing and completion ofthe imposition of criminal liability upon the offender, as discussed below.1.3.1 Applicability of Criminal Law Principles to PunishmentAs punishment is part of criminal law, the general principles of criminal law areapplicable to it the same way they are applicable to any other part of criminal law.Criminal law relates to both criminal liability and punishment. The imposition ofpunishment is contingent upon the imposition of criminal liability. The structure ofthe criminal offense, as discussed above,65refers both to the criminal liability (the“if” part) and to punishment (the “then” part). As the general principles of criminallaw are applicable to criminal offenses, their applicability is not restricted tocriminal liability alone but to punishment as well.For example, the principle of legality is applicable to both criminal liability andpunishment. Thus, retroactivity is prohibited as it relates to both criminal liabilityand punishment.66The legislator is not authorized to form new offenses that createretroactive prohibitions, and the courts are not authorized to impose either criminalliability or punishment retroactively. Furthermore, in most legal systems, accordingto the principle of legality the court is not authorized to create new offenses becausethe legitimate sources of a criminal offense do not include case law.67This principleapplies to both criminal liability and punishment.At times it is punishment and not criminal liability that forms the crucial elementin the applicability of the principles of criminal law. In the case of the prohibitionagainst retroactivity, for example, it is essential to distinguish between mitigatingand aggravating criminal norms.68In most cases, the distinction between mitigationand aggravation in criminal law is based on the punishment (e.g., an offense subjectto 3 years of imprisonment offense is aggravated by comparison with an offensesubject to 1 year of imprisonment). In most cases, amendments to the currentoffense or to the current criminal norm are classified as aggravating or mitigatingbecause of the expected change in punishment.65Above at paragraph the prohibition on retroactivity within the principle of legality in criminal law see GabrielHallevy, A Modern Treatise on the Principle of Legality in Criminal Law 49–80 (2010).67Ibid, at pp. 39–42.68Ibid, at pp. 56–58.1.3 The Substantive Integration of Punishment into Criminal Law Theory 11
  • 12. The principle of legality is not the only one applicable to both criminal liabilityand punishment; so are all principles of criminal law. The principle of personalliability requires the imposition of both criminal liability and punishment only onthe relevant offenders (perpetrators, inciters, accessories, conspirators, etc.).69Theprinciples of conduct and culpability require factual and mental elements for theimposition of both criminal liability and punishment. Moreover, the modernsentencing process and the choice of proper punishment are based on the offender’sculpability and on the harm caused by the offense.Although the process of sentencing may involve additional considerations, theapplicability of the general principles of criminal law to punishment is unquestion-able. If the process of sentencing or a given punishment contradicts one of thesegeneral principles, they cannot be valid, in the same way as no criminal liability canbe valid if it contradicts even one of these general principles.1.3.2 Balancing and Completing the Imposition of CriminalLiabilityThe imposition of punishment is the natural sequel to the imposition of criminalliability. But it is more than that, as it also serves to balance and complete thecriminal liability. Imposition of criminal liability is a binary process: criminalliability is either imposed (conviction) or not (acquittal). There are no validintermediate situations between conviction and acquittal. No partial conviction ispossible on a particular charge: the court must decide whether the defendant hascommitted the offense or not.The prosecution and the defense may negotiate the substance of a given chargethrough plea bargaining in legal systems that allow it.70But at the end of thenegotiation, after agreement is reached and the charges are amended, the decisionof the court is again binary: the offender is either convicted in the amended chargesor not. The court has no third option, between conviction and acquittal, with respectto the imposition of criminal liability. In most cases this is the appropriate societalresponse to the commission of the offense, and the correct expression of the processof “doing justice.” But this situation is not optimal in all cases.There are some luminal cases in which both conviction and acquittal areinappropriate, as when the offense has been factually committed but the personalcircumstances of the offender were so extreme that they require different treatmentby society. In cases of this type, the tools available for imposing criminal liability69For the principle of personal liability see Gabriel Hallevy, The Matrix of Derivative CriminalLiability 1–61 (2012).70Gabriel Hallevy, Is ADR (Alternative Dispute Resolution) Philosophy Relevant to CriminalJustice? – Plea Bargains as Mediation Process between the Accused and the Prosecution, 5 Or. L.Rev. 1 (2009); Gabriel Hallevy, The Defense Attorney as Mediator in Plea Bargains, 9 Pepp. Disp.Resol. L. J. 495 (2009).12 1 Punishment as Part of Modern Criminal Law Theory
  • 13. are insufficient or inadequate. As soon as punishment becomes relevant, the varietyof legal and social tools expands. In this way, the imposition of criminal liability isbalanced by the punishment, and completed, in order to provide an appropriatelegal and social treatment of the offender.Probation without conviction (or “pure” probation) is an example of such a tool.At times the offender’s personal circumstances are extreme to such a degree thatconviction in itself, regardless of the punishment imposed, has a devastating effecton the offender. Young offenders often face such situations (for example, posses-sion of drugs, light violence, driving without a license, etc.). If convicted, theircriminal record may hurt their future prospects and reduce the chances for theirrehabilitation, regardless of the type of punishment imposed on them. Nevertheless,the offense they have committed cannot be ignored.In these cases, a punishment of probation without conviction enables the court toplace the offender under probation for rehabilitation and erase the offender’scriminal record if the process of rehabilitation succeeds. In this example, thepunishment balances and completes the imposition of criminal liability. In casesin which the offender’s personal circumstances indicate mental impairmentalthough the offender is still considered sane, the court has no other option but toimpose criminal liability if the offender committed an offense. This is also the casewith mentally retarded persons, for whom the defense of insanity is not relevant.The only way to balance the imposition of criminal liability upon such offendersis through punishment. Naturally, the court needs wide discretion in the impositionof punishment for this option to be effective. When courts have limited discretion insentencing (because of mandatory punishments, mandatory sentencing guidelines,etc.), the opportunity to balance and complete the criminal liability is naturallymore limited.71In such cases, some legal systems provide advanced legalmechanisms that allow the courts to bypass these limitations.One such mechanism is that of diminished capacity,72which allows the court tooverride ex ante restrictions on the judicial discretion in sentencing through impo-sition of lenient punishments ex post in appropriate cases. The mechanism may begeneral or particular. The general version allows the court a wide judicial discretionin all cases, regardless of circumstances. The particular version is restricted tocertain offenses, to certain types of offenses, or to certain types of offenders.7371Andrew Ashworth, Sentencing and Criminal Justice 33–35 (4th ed., 2005).72Stephen J. Morse, Diminished Capacity, Action and Value in Criminal Law 239 (Stephen Shute,John Gardner and Jeremy Horder eds., 2003).73Michael Allen, Textbook on Criminal Law 146–157 (10th ed., 2009); Subsection 2(1) of theHomicide Act, 1957, c.11 provides: “Where a person kills or is a party to the killing of another, heshall not be convicted of murder if he was suffering from such abnormality of mind (whetherarising from a condition of arrested or retarded development of mind or any inherent causes orinduced by disease or injury) as substantially impaired his mental responsibility for his acts andomissions in doing or being a party to the killing”; Byrne, [1960] 2 Q.B. 396, [1960] 3 All E.R. 1,[1960] 3 W.L.R. 440, 44 Cr. App. Rep. 246; Wood, [2008] E.W.C.A. Crim. 1305, [2008] 3 All E.R. 898; Dietschmann, [2003] U.K.H.L. 10, [2003] 1 A.C. 1209, [2003] 1 All E.R. 897, [2003] 2 Cr.App. Rep. 54.1.3 The Substantive Integration of Punishment into Criminal Law Theory 13
  • 14. The mechanism is needed mostly when the penal code includes offenses carryingmandatory minimum punishments or mandatory punishments, and it is intended tobypass this restriction.74When no mandatory punishment is associated with the offense, the court alreadyhas wide judicial discretion and may impose any punishment between none and themaximum punishment allowed by law for the given offense. But when this discre-tion is restricted in the definition of the offense, the diminished capacity mechanismenables the court to bypass the restriction and use the diminished capacity mecha-nism to impose a certain punishment that balances the imposition of criminalliability and completes it in a way that is consistent with the desired social treatmentof the offender.The balancing and completion of criminal liability through punishment does notalways have a mitigating effect, and it can also be aggravating. For example, whenthe court realizes that the offender remains dangerous to the society even afterserving the punishment, the imposition of criminal liability is not adequate toprotect the society against that offender. Consequently, the court can imposecontinued restriction as part of the sentencing process, which again completesand balances the criminal liability.For example, in many legal systems the court has the authority to restrict certaintypes of sex offenders beyond the term originally decreed based on their criminalliability. These restrictions may include mandatory psychological treatment,restrictions in their place of residence (e.g., pedophiles may be required to live ata certain distance from children), restrictions on their place and type of work (e.g.,pedophiles may not be allowed to work in places that may bring them into contactwith children), and so on. These restrictions are intended to complete the impositionof criminal liability and balance it in favor of society.74For mandatory sentencing and mandatory minimum sentencing see below at paragraph 1 Punishment as Part of Modern Criminal Law Theory