We have all been moved, in recent weeks, from the trials developed around some brutal crimes. I am thinking, in particular, of the death of a young man, caused by beatings inflicted on him by a mob of other young people. rugby players. Crimes like these, and their details, have generated excessive pain and damage to all of us. I would like, however, to take advantage of the opportunity that this moment of collective mourning offers us, to raise some questions and doubts – for me difficult to answer – related to the highly “punitive” responses that today, lightly, are offered to such cases. The objective of the text is not to generate necessary controversies, but to reflect critically on issues as sad as they are complex.
More justice, more pain? I begin by raising a perplexity typical of demands for “severe” or “lifetime” penalties. In a habitual way, we are told that, in this way (with “very high penalties”) they seek to “do justice”. This is done, linking –incomprehensibly– the level of “justice” of the state response, with the metric of “years in jail” (it was tragic, these days, to hear the parade of declarations from our ruling class, celebrating the “sentences for life” because “justice was finally served”). In Argentina, we have become accustomed to this type of association, since the years of the trials for the crimes of the dictatorship: only when life sentences were heard was it said: “at last justice was done!”
However, for all cases, and even or especially in the face of the most terrible crimes, there is nothing obvious in this assimilation between “more justice” and “higher sentences.” In today’s Colombia, after decades of “armed conflict,” the State seeks “Justice and Peace,” regardless of whether it requires more or less “penalties.” Something similar happened in post-apartheid South Africa: what mattered were other things – knowing the “Truth” of what happened, for example – rather than imposing the most severe punishments. That is to say: the assimilation between “justice” and “more severe penalties” is not obvious, nor does it seem sensible, nor is it nevertheless useful, in any sense.
The objective is to reflect critically on topics as sad as they are complex.
What purpose do we seek, through harsh punishment? Once it becomes clear to us that “doing justice” is not the same as “sentencing with more penalties,” the question arises as to what we are really looking for when we demand harsh punishments. I offer here some very common answers, anticipating the problem that I see in them: they seem to point to very different places, often in tension with each other. The question is: What do we want when we propose “the highest penalties” in these cases? Do we want “society to learn” what happens when someone commits an aberrational crime? (Do we want to “instill fear” in the rest of society, taking the culprits as “mere means”?). Do we want, exclusively or in addition, to “give what they deserve” to the murderers in the case? Do we want them not to have the opportunity to commit a similar crime again? Do we want to “reform” these criminals, and then try to reintegrate them? Do we want to seek his repentance and amendment? Once again: we need to clarify (us) what we are looking for, through severe punishment, because many of the previous responses seem incompatible with each other (they address different subjects; they seek different objectives; they are satisfied with opposite means; etc. ).
Internally very fragile responses. Once we define what we are actually pursuing, through “severe punishment” (“dissuade the rest”; give someone their “deserve”; “reform and reintegrate” the criminals) we need to reflect on the rationality and reasonableness of the specific goal we choose – whatever it may be – and about the means by which we choose to achieve those goals. My impression is that we do not think or do not want to think too much about the matter, because we sense the difficulties that we are going to encounter along the way. I don’t say this in the spirit of “complicating things”, but with the genuine goal of thinking better about what is difficult.
Let’s see: if we propose the imposition of “exemplary penalties” (“very high”) to deter potential criminals (“that no one else dares to commit such an act”), we must be aware that deterrence does not seem to be working well in any part (the criminal usually assumes that “he” will not be found; crime levels seem to depend on variables other than the penalty levels we establish; etc.); and also recognize that other (preventive) policies may be more humane and more efficient for the deterrence that we seek (beyond the fact that they avoid the immorality of taking the convicted as “mere means” to obtain the fines that we propose). On the contrary, if what matters most to us, when we punish, is that the criminal “change” or “reform” in order to later be able to “reintegrate” him, we must warn that we are headed for certain failure if, to achieve this, we confine to the criminal a den of mistreatment and violence (our jails); we surround him with the worst criminals we have ever encountered; and we isolate him from the rest of society (from his family and his affections).
What the criminal will “learn” through this “school” that we imposed on him is to be even more violent: from there he will come out, when he comes out, much worse than when he entered it, but that result will now be, in part, responsibility our. It will be the “expected product” of the “education in crime” that we have given him. Finally, if what we seek, through “very high” penalties, is to give someone “what they deserve” (let’s say, a kind of
impermissible revenge at the hands of the State that has a monopoly on violence), it will be convenient for us to clarify, previously, how we are going to “measure” that “deserve” (what “deserves” a person who commits a crime, such as that of rugby players, that they torture her? that they ripped off her foot? that they sentence her to death?).
It is not that we are ingenious or that we close our eyes to the effects of the answers we give
And, beyond this insoluble difficulty to specify what someone “really deserves”, after a serious crime, it will also be convenient to reflect on the kind of society we are or the one we have become, condemning in this extreme way . I suppose (although, for now, I’m not affirming it, I’m only raising it as a doubt), that one of those criminals (let’s say, one of the aforementioned rugby players) made, without much thought, the mistake of his life, and today he is deeply sorry for it. what he did. If this is true, that single possibility should occupy an important place when it comes to offering answers, from the State. Perhaps, rather than throwing that young criminal into hell, and disregarding him (which is what we will do), we will bet on recovering or rebuilding the part of humanity that we still retain (we are finally talking about adolescents, almost children). It is not about us being ingenious (they have done something terrible), but neither about closing our eyes (us, the State) to the (disastrous) consequences of the answers we give. If I may be heresy: none of us is exempt from making an unforgivable mistake.
The Constitution does not allow “any” answer. Some eventual readers, surely, will not end up questioned or persuaded by anything he has said up to here. They – surely, and in part it is understood – are completely convinced of the value and necessity of the “hardest” sentences (“let them rot in jail”). Well then, those who want to remain stubbornly in that place (that of hyper-punitiveness) should take note, at least, that our Constitution does not allow any response on the matter (above all, hyper-punitive responses, such as those they invoke). Indeed, the old Constitution of 1853, with its modest humanitarian liberalism, condemns and prohibits certain (common) penal responses. I simply quote the crucial sentence that the art dedicates. 18 of the CN, to the question of penalties, remembering that it is a mandatory “mandate”, for everyone, and not a mere “recommendation” that we can comply with if we feel like it. The CN says: “The Nation’s prisons will be healthy and clean, for the safety and not for the punishment of the prisoners detained in them, and any measure that, under the pretext of precaution, leads to mortifying them beyond what is required, will hold the prisoner responsible. judge to authorize it.”
This sentence confirms that most of the things we do in the area (the prisons we have, the punishments we give, the type of sentences we impose) are directly contrary to law: we “mortify” through punishment ; we “punish” through deprivation of liberty; we maintain “insane and dirty” prisons. All of which may be irrelevant for journalists and propagandists in the area, but it cannot be so for the officials who have the obligation to apply the law. In short: we are facing a painful and difficult issue to deal with. However, the fact that we have enormous difficulties in recognizing, in the face of these terrible cases, what is the best response available to us – in legal, political and moral terms – does not enable any alternative response, which we impulsively or thoughtlessly offer.
*Doctor of Law and Sociologist. Professor of Constitutional Theory and Political Philosophy (UTdT) and Constitutional Law (UBA). This text was originally published on your blog
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