Sessar Porto Problems criminology has with criminal law

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2 criminology in empirical conflict with policy and a form of criminology as an observer of policy. It is especially these last two forms that I want to address. The purpose of the following remarks is to depict some of the difficulties that criminal justice systems may have in attuning their legal principles to compelling social determinants of decision-making or in accepting empirically disclosed realities which are contradicting normative realities as they are cultivated in the legal programs. By drawing on systems theory, the assumed difficulties are theoretically transformed into problems of communication that the functions systems of “science” (criminology) and “law” (criminal law) have among each other. Empirical experiences. Empirical observations that the severity of punishment does not (or only in exceptional cases) have a deterrent effect are almost uncontested in criminology (von Hirsch et al. 1999; Entorf, Spengler 2008). In contrast, criminal law continues to justify severe punishments with their purported deterrent properties regarding the general population (general deterrence, in Germany “negative general prevention”) and individual offenders to prevent them from committing further crimes (special deterrence or special prevention). An additional preventive goal has been formulated in German criminal law as punishment is said to strengthen the citizens’ confidence in the law and its enforcement; this is called “positive general prevention”. This concept, which is not a theory in our sense, is therefore neither verifiable nor falsifiable in empirical terms, but is part of the self-referential operations of the closed legal system. The conclusion from this is: Psychologically and sociologically grounded preventive sanctions on the individual and the collective level mirror the modern, science-based type of criminal law. They demonstrate that law conceives itself as part of society, acknowledging the society’s expectations in terms of guarantying safety by means of crime reduction. This is the one side of the coin. On the other side criminal law will adopt such utilitarian profiles only as long as they comply with its own internal – non-utilitarian – principles which require the law’s restoration in case of unlawful behaviour through retributive punishment. Thus, retribution and deterrence are both parts of the old self-sustaining repressive ideal which gets by without validating causal relationships. A judge who is convinced that punishment does not deter must not change his habitual sentencing practice as deterrence is hardly more than an empirical looking label of traditional legal goals (this is regularly misunderstood by criminologists). Another example of the criminal justice system’s refusal to follow criminological findings refers to the attitudes of people towards restituição (Wiedergutmachung, redress, reparación, réparation, Schadevergoedingsmaatregel) as an alternative to traditional punishment. In many investigations, including my own in Hamburg, the willingness of the population to accept restitution instead of punishment was very large, either on the whole or dependent on the type of offense, the concrete social context, the relationship between offender and victim, etc. (Sessar, 1992; Boers, Sessar 1991). This also applies to the vast majority of victims of a crime (exceptions are victims of serious violent crimes). If we add that victims of crime (again excluding cases of multiple or serious violent victimization), do not display higher degrees of fear of crime than non-victims, then one arrives at the conclusion that the "'victim' does not provide a very suitable justification for a policy of harsh punishment' (Boers 2003, 14). The reaction of the German legislature to such results has been interesting. New statutes were enacted which allowed for a mitigation of punishment or even the dismissal of the case under the precondition that a prior victim-offender reconciliation process be carried out. The judiciary responded either by neglecting the rule or by establishing harsh requirements for the offender to consider his restituting efforts as being satisfactory, so that very few cases could actually benefit from such forms of restitution. In other words, a marked reluctance was demonstrated towards sanctions that do not follow traditional punitive standards. The findings
3 provoked some unease within the judiciary (which was included in the survey) when it became apparent that judges, and especially prosecutors, were more punitive than the public (on the basis of the Hamburg survey four groups were formed, male and female judges and male and female prosecutors; the expected largest discrepancy existed between male prosecutors with the highest and female judges with the lowest level of punitivity, Sessar 1992, 226-232). Sometimes, however, criminological results are in perfect harmony with the justice system’s need to master its daily workload. For example, after thorough investigations of the development of juvenile delinquency over time, especially of the “aging-out phenomenon”, criminologists formulated a triad of normalcy in the sense of almost ubiquitous occasional delinquent behaviour during adolescence, the rare discovery of minor delinquents and their expectable autonomous desistence from delinquent acts even in the many cases of nondiscovery (Sessar 1997). Insights of this kind helped to introduce what is called "Diversion" through which a formal criminal sentence is replaced by the dismissal of the case, with or without preceding informal educational measures, mostly at the pre-trial level, sometimes in court. (Of course, juveniles committing serious offences are not included in the program.) For instance, in 2006 two thirds of juvenile proceedings in Germany involving chargeable minors were dealt with in this matter (in Hamburg the figure was over 80%). As one can see, criminological findings are accepted as long as they suit the legal system’s requirements – whether these be of a theoretical or, regarding case-load problems, practical nature. Another positive example is provided by Portuguese drug policy: on the basis of recommendations provided by a commission of experts the whole area surrounding illegal drugs has seen a trend towards significant decriminalization (Law 30/2000 of 29 November 2000, entered into force in July 2001). Even the possession of hard drugs for personal use in the first ten days is exempt from formal punishment. The fear expressed by some that Portugal would turn into a paradise for drug addicts has not materialized, and both the number of drug related deaths and HIV-infections was down 50% between 2000 and 2003. Cândido da Agra plausibly labeled this a "Requiem pour la guerre à la drogue" (2009; see also Quintas 2006). In the absence of further information it will be assumed that the mass of accumulated evidence concerning the social misery and the many crimes that were generated by the costly war on drugs finally lead to a re-orientation of the political system, more precisely, to a change from opinion-based policy to evidence-based policy (Davies 2004). This, indeed, is a rare event and merits much attention from other countries 3. Theoretical experiments. These small examples of different degrees of acceptance displayed by the agencies of crime control to the results of criminological research seem to lack a consistent picture. It would be difficult to find an explanation which unites the divergent observations in a satisfying way. Beyond this is the much larger question as to how and to what degree criminology is accepted outside of itself that is, by crime-related disciplines outside of its own field, and in which way. In an effort to bring theory-based clarity to this situation, an analytical differentiation will be made between criminology as part of the scientific field and criminal law with its policies as part of the legal (and the political) field. The dividing line is found in societal systems or fields. To this end I refer to two sociologists from Germany and France, Niklas Luhmann and Pierre Bourdieu, who each individually developed comparable concepts to approaching the systems character of science and law (and politics). The foundation of modern systems theory is built on, though emancipated from, the structural-functional theory of Talcott Parsons. Society is composed of functional – closed - systems such as science, politics and law (alongside economy, medicine, education, art etc.). None of these systems are of greater or lesser importance than the others; that is, they are not hierarchically ordered. A system in this context is seen as developing a relatively autonomous,
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Page 11: van Swaaningen R. (1999), Reclaimin

Sessar Porto Problems criminology has with criminal law

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