WHAT IS LEGAL PUNISHMENT?

THE EXPRESSIVE FUNCTION OF PUNISHMENT (Joel Feinberg and Jules Coleman) Punishment is defined, in effect, as the infliction of hard treatment by an authority on a person for his prior failing in some respect, usually an infraction of a rule or command. Penalties is impose when a certain kind of conduct is discouraged without being absolutely prohibited. In effect, penalties are licensing fees, different from other purchased permits in that the price is often paid afterwards rather than in advance. Both are authoritative deprivations for failures Penalties have miscellaneous character Punishments have certain expressive function: Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, either on the part of the punishing authority himself or of those in whose name the punishment is inflicted. Punishment has a symbolic significance largely missing from other kinds of penalties. The reprobative symbolism of punishment: reprobation is itself painful, whether or not it is accompanied by further hard treatment The hard treatment character of punishment: because of its conventional symbolism, can itself be reprobatory Theses in the essay: 1. Both the hard treatment aspect of punishment and its reprobative function must be part of the definition of legal punishment; 2. Each of these aspects raises its own kind of question about the justification of legal punishment as a general practice Some jobs that punishment does and some of the conceptual problems it raises cannot be intelligently described unless: 1. It is true; 2. That incoherence of a familiar form of the retributive theory results from failure to appreciate the force.

Punishment as Condemnation The expression of communitys condemnation is an essential ingredient in legal punishment. Henry M. Hart: the distinction between criminal and civil sanction is the judgment of community condemnation which accompanies its imposition. The essence of punishment for moral delinquency lies in the criminal conviction itself. It is the expression of communitys hatred, fear, contempt for the convict which alone characterized physical hardship as punishment. Crime- a conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. The unpleasant treatment to convicts expresses the condemnation, and that this expressive aspect of his incarceration is precisely the element by reason of which it is properly characterized as punishment and not mere penalty. Certain forms of hard treatment have become the conventional symbols of public reprobation. Particular kinds of punishment are often used to express quite specific attitudes (beheading nobleman and hanging a yeoman; burning a heretic and hanging a traitor; hanging an enemy soldier and executing him by a firing squad) It is easier to say that punishment has a symbolic significance than to say exactly what it is that punishment expresses. Punishment generally expresses more than judgments of disapproval; it is also a symbolic way of getting back at the criminal or expressing a kind of vindictive resentment. A criminals punishment bears the aspect of legitimized vengefulness. Resentment- various vengeful attitudes Reprobation- stern judgment of disapproval Condemnation- kind of fusing of resentment and reprobation. Resentment and Reprobation are the two elements that can be found it legal punishment. Principle of Retribution 1. In Vengeance sense- the satisfaction by the State of a wronged individuals desire to be avenged 2. In Reprobation sense- States marking its disapproval of the breaking of its laws by a

punishment proportionate to the gravity of the offense. Some Derivative Symbolic Functions of Punishment 1. 2. 3. 4. Authoritative Disavowal Symbolic non-acquiscence: Speaking in the name of the people Vindication of the law Absolution of others 1. Authoritative Disavowal o Standard international practice of demanding that nation whose agent has unlawfully violated the complaining nations right should punish the offending agent. 2.Symbolic non-acquiscence: Speaking in the name of the people- effective public denunciation. Law that punishes a certain act in behalf of the citizens will, 3.Vindication of law- a statute honored mainly in the breach begins to lose its character as law, unless, as we say, it is vindicated; and clearly the way to do this is to punish those who violate it. 4.Absolution of others- when something scandalous has occurred and it is clear that the wrongdoer must be one of a small number of suspects, then the state, by punishing one of these parties, thereby relieves the others of suspicion, and informally absolves them of blame.

Constitutional Problem of Defining Legal Punishment Flemming vs. Nestor (regulation vs punishment) Subversive Drivers Act The problem of strict criminal liability Punishment with intent to commit a wrong (mala in se) Penalties- no intent to commit (mala prohibita) Two things are morally wrong: 1. to condemn a faultless man while inflicting pain and deprivation on him (unjust punishment) 2. to inflict unnecessary and severe suffering on a faultless man even in the absence of condemnation (unjust civil penalty) Justifying Legal Punishment; Letting the Punishment Fit the Crime

Prepared by: Diana S. Fajardo.1L. LLB.

Hard treatment and Symbolic condemnation are necessary elements in defining punishment. Retributive Theory- neither condemnation nor vengeance, but insists that the ultimate justifying purpose of punishment is to match off moral gravity and pain, to give each offended exactly the amount of pain the evil of his offense calls for, on the alleged principle of justice that the wicked should suffer pain in exact proportion of their turpitude. Deciding the amount of suffering must be based on: 1. Assessment of the character of the offender 2. Abandonment of general rules in the interest of individuation of punishment 3. General rules must list all crimes in order of their moral gravity, all punishments in order of their severity and the matchings between the two. What justice requires is that the condemnatory aspect of punishment suit the crime. Seriousness of crime is measured by the amount of harm it causes and the degree to which people are disposed to commit it. Infliction is the symbolic vehicle of public condemnation.

The deterrence has been blasted by crime statistics and court records. The death penalty will not put an end to violence and criminality will continue to hide more criminals, who in turn, will produce mo victims. The death penalty will not arrest these violations. Rather, it will perpetrate the culture of violence. Alternatives: 1. Adoption of constitutional amendment that will provide for the unqualified abolition of death penalty and for the reduction of death penalty already imposed to reclusion perpetua without parole. a. this will be a reasonable vindication of rights of the nearest kin of the victims and will give ample opportunity to the offenders within the confines of prison, to repent and reform. 2. The enactment of bold legislative measures, coupled with decisive executive orders, that will address the shortcomings in the lawenforcement system, the flaws in criminal prosecution, and the weakness in judicial administration. a. Lord Parker: the great deterrent to crime is not severity of punishment but certainty of conviction b. Amnesty International: It is the certainty of arrest, conviction and long periods of imprisonment, not the threat of execution alone, which will act as deterrent against crime. 3. On the part of the government, church, and civil society to undertake and intensify human rights education at all school levels and among various sectors of society in order to underscore the worth of every human being and sanctity of every human life. 4. Holistic process of reflection, analysis and action by the government and nongovernment sectors in order to address the roots of violence, lawlessness and criminality.

The concurrence of conflicts has dramatically increased in number, intensity and victimization. Yet, there have been few prosecutions, whether at the international or national level. Ad hoc tribunals for investigation in Yugoslavia and Rwanda There have been two national prosecution systems established in Argentina and Chile In Eastern and Central European countries, lustration laws have been passed to remove persons of the past regime from office, but only a few prosecutions have taken place.

ALTERNATIVES TO AND OPTIONS IN PLACE OF DEATH PENALTY (Rene V. Sarmiento) The death penalty is cruel at the extreme and to work for its abolition is an honorable thing to do. The abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights (UNCHR) The abolition of capital punishment is most desirable in order fully to respect the right to life Capital punishment is inhuman and its application may well be compared with torture Death penalty violates the human right to life and human dignity Justice William Brennan: when the state punishes with death, it denies the humanity and dignity of the victim and transgresses the prohibition against cruel and unusual punishment RA 7659: the alarming upsurge of such crimes which has resulted not only in the loss of human lives and wanton destruction of property but also has affected the nations efforts towards sustainable development and prosperity.

Justice is all too frequently bartered away for political settlements wherein the victims rights become the objects of political trade-offs, and justice becomes, depending upon ones perspective, the victim of the means of Realpolitik. Bartering away justice for political results is the goal of most political leaders who seek to end conflicts or facilitate transitions to non-tyrannical regimes. The grim reality is that in order to obtain peace, negotiations must be held with the very leaders who frequently are the ones who committed, ordered, or allowed terrible crimes. Peace now, Justice later is a fallacious dichotomy that may be tragically deceptive. Peace- freely used in the context of ending conflicts or ensuring transition to non-tyrannical regimes. The processes of attaining peace, whatever the intended outcomes may be, vary in accordance with: 1. type of conflict 2. its participants 3. level of victimization 4. manner in which victimization occurred 5. other destructive conduct by opposing groups 6. popular perceptions of what occurred 7. future expectations of popular reconciliation between, or co-existence among opposing groups. Peace encompasses wide range of policy options If peace is not intended to be a brief interlude between conflicts, then in order to avoid future conflict, it must encompass what justice is intended to accomplish: prevent, deter, punish, and rehabilitate.

SEARCHING FOR PEACE AND ACHIEVING JUSTICE: THE NEED FOR ACCOUNTABILITY (M. Cherif Bassiouni)

NORMATIVE FRAMEWORK

Prepared by: Diana S. Fajardo.1L. LLB.

The normative framework has certain weaknesses and gaps: 1. While conflicts of international character are adequately covered by conventions, conflicts of non-international character are less adequately covered. 2. Purely international conflicts and tyrannical regime victimization are not subject to these and other aspects of the regulation of armed conflicts, including the customary law of armed conflicts. 3. Yet, crimes against humanity have yet to be embodied in a specialized convention that would clarify certain ambiguities relative to its earlier formulation. 4. There is an overlap between genocide and crimes against humanity, as well as overlap between these two crimes and war crimes. 3 categories of international crime: 1. Genocide 2. Crimes against humanity 3. War crime There is also a significant weakness in the practice of states with respect to carrying out the underpinning of these normative proscriptive: duty to prosecute or extradite, and for states to cooperate with each other in the investigation, prosecution, and adjudication of those charged with such crimes. Another impediment: limited recognition of the theory of the universal jurisdiction, national criminal justice system would have the competence to exercise their jurisdiction for such crimes There are sufficient norms, what is lacking is the political will to enforce them.

Impunity- s an act of exemption from punishment or from injury or loss. Accountability options: 1. International prosecutions- prosecution before a permanent international criminal court or before an ad hoc international criminal court. 2. International and national criminal investigatory commissionsinclude internationally established commissions or designated individuals assigned to collect evidence of criminality in addition to other fact finding information of a more general nature Acknowledgement of responsibility through national mechanisms such as investigative and truth commissions and reconciliation hearings and findings, both national and international National prosecution- should include all persons who have committed criminal acts subject however to reasonable and justified prosecutorial discretion. National lustration mechanisms- is a purging process whereby individuals who supported or participated in violations committed by a prior regime may be removed from their positions and barred from positions of authority or elective positions. These mechanisms are essentially used as a political sanction. (Danger: they tend to deal with classes or categories of people without regard to individual criminal responsibility) National civil remedies- development within civil legislation of the right to bring suit by victims and their heirs, which enable them to obtain certain civil remedies. International mechanism for the compensation of victims- it is necessity. These programs must provide for a fair administrative method to determine the actual damages as opposed to punitive damages. Non-monetary forms of compensation should also be developed.

POLICY CONSIDERATIONS: Whichever mechanism or combination is chosen, it is chosen to achieve a particular outcome which is, in part, justice, and wherever possible, reconciliation, and ultimately, peace. A.M. must be credible, fair and exhaustive of truth. The fundamental principle of accountability: 1. Cessation of the conflict and thereby ending the process of victimization 2. Prevention of conflicts in the future 3. Deterrence of conflicts in the future 4. Rehabilitation of the society as a whole and of the victims as a group 5. Reconciliation between different peoples and groups within the society Truth is imperative because there cannot be peace without justice. Forgiveness can only follow from he satisfaction of all parties, particularly those who have been victimized, after the truth has been established. Forgiveness- change of heart toward a wrongdoer that arises out of a decision by the victimized person (subjective) Mercy- suspension or mitigation of a punishment that would otherwise be described as retribution (objective) Impunity for international crimes and for systematic and widespread violations of fundamental human rights is a betrayal of our human solidarity with the victims of conflicts to whom we owe a duty of justice, remembrance, and compensation.

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ACCOUNTABILITY MECHANISMS: Accountability is the antithesis of impunity. The power to forgive, forget , or overlook in the cases of genocide, crime against humanity, war crimes, and torture is not the governments but of the victims. Accountability measures falls into three categories: truth, justice, redress. Amnesty- deliberate positive action of forgiving after the persons have been convicted 7.

Prepared by: Diana S. Fajardo.1L. LLB.