Organised Crime & Crime Prevention - what works? - Scandinavian ...

NSfK´s 40. forskerseminar, Espoo, Finland 1998
The justice of a criminal justice system is evaluated by the principles of equality, fairness and
predictability (Lahti 1985, 259). Equality requires similar punishments for similar cases
(Lappi-Seppälä 1987, 665). The principle of justice can bee seen as containing two demands
that are in state of internal tension; formal (generalized) justice and (individualized) in casu
justice. The former emhasizes predictability an the latter stresses that cases should be dealt
with on an individual basis (Lappi-Seppälä 1987, 665). Predictability is in connection with
legalistic nulla poena sine lege -principle.
Humaneness contains the idea of the criminal justice system beeing determined so that it is in
harmony with the principles of human dignity, integrity, freedom of the individual and other
human rights (Lahti 1985, 259, Nuutila 1996).
One way of justifying the criminal justice system is justification on utilitarian grounds. It can
also be said that the justification of the application of punishment is tied to the benefits that
particular system offers to the society and to the fairness of the laws maintained through the
threat of using that punishment (Lappi-Seppälä 1987, 661). However, it is clear that the
structure and operation of the penal system can not be determinated only on the bases of its
utility. The penal system must be both goal-rational (utility) and value-rational (justice,
humaneness) (Lahti 1990, 57). The answer to a successfull penal system is of course to
balance these interest.
This brings us close to the question of the principle of proportionality. This principle states
that there should be a just relation between the offence in question and the punishment.
However, this principle does not state anything specific about the criteria of how this relation
should be determined or what are the standards used in anchoring these quantates together;
there is no way of measuring what is the “right” punishment for any given crime. In general,
the literature relies on the general sense of justice (Lappi-Seppälä 1987, 665).9
...and “constructive punishment”
So what could constructive punishment be in the light of the few general principles of
sentencing discussed above? Is there a definition for a constructive punisment? Can
punishment be - or should punishment ever be constructive - is punishment not something
you just bring on to yourself by acting against societies intrest? Should the punishment be
constructive for the offender or for the surrounding society. Or both?
Constructive punishment in the eyes of the criminal sanctions system could be defined as a
punishment which while protecting (only) the vital intrests of the society builds general
prevention without endangering the human rights of the offender during or after the
punishment. In this definition the punishment could be constructive for both the offender and
the society.
Can imprisonment be constructive punishment? In my opinion there has to be special
conditions for the prison sentence before it can be constructive in any way. This leads us
back to Anttila`s and Törnudd´s sentence: “The period of time spent in prison should,
9 Lappi-Seppälä sees three justifications for this: a) if the public opinion were to be ignored, the confidence
placed in the system would disappear, b) the ideal of democracy in itself requires that the sense of justice, as the
will of the people, be adopted as a criterion in decisionmaking, and c) the feeling that criminal recive the
punishment they “deserve” has a value of its own (Lappi-Seppälä 1987, p. 665).
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