SOCIETY OF INSECURITY AND dangerous criminal lawyer Jesús Miguel GarcÍa Cácer

es PSQ Hospital. Penit. Alicante Set as policy objective Criminal total security
is a fallacy. The total security does not exist, can be achieved. The need to e
nsure public safety is inversely proportional to the achievement of legal uncert
ainty for citizens, achieved through the latest legislative reforms. The latter
is what actually creates "social alarm". Do not forget that insecurity situation
s are typical of countries in conflict or post-conflict situation in which the p
roliferation of criminal activity is growing constantly taking advantage of a lo
ophole, which is not the case in our country. Criminal policy should be geared t
owards a humanistic and inclusive concept that meets the criterion of "to each a
ccording to their needs," meaning that the weak, minority, poor, drug addicts, f
oreigners, the mentally ill and all those who are somehow disadvantaged social p
osition and are particularly vulnerable, should take steps to offset their handi
cap, and receive, not as a main and only, his imprisonment, but the assistance n
ecessary to leave the pit. Our current criminal justice system is headed in the
same direction: keeping these people in prison by our parliament approves laws,
increasing the existing social injustices. Criminal justice is discriminatory in
the sense that it exerts on traditional types of crimes against persons and pro
perty, being ineffective on socially harmful events structured around the politi
cal and economic organization. The problem of current criminal policy lies, appa
rently in usual crime "low intensity", which maldenomina for power as "professio
nal crime", forgetting, again, forms of crime such as financial crime. Just look
at the Spanish prison population. That is, the current criminal policy aims to
pure and harsh repression of petty criminal. Policy is not effective because it
reduces reinserted and, therefore, crime rates, forgetting prevention policies s
uch as improving the rates of unemployment, poverty reduction, integration of im
migrants ...
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It is thought that the solution is in the inoculation. All in jail. However, thi
s term has several meanings. If you mean by that, the neutralization capacity of
the criminal, ie, neutralization of the dangerous criminal is not necessary to
the imprisonment of these people because there are other ways to achieve a regim
e of liberty. Has special significance for the mentally ill prison for those who
is a stigmatizing element (any criminal sanction stigmatizing) of ostracism (pu
re inoculation) and dehumanizing punishment. A serious criminal policy must take
into account the prediction of economic and social trends in the countries of y
our environment. In this sense it is essential to take measures for the exchange
of information between countries about possible future conditions. I totally ag
ree that "the days of locking up criminals and lose the keys, comes to an end."
In the United States, where there are three times more mentally ill people in pr
ison than in psychiatric clinics, the situation is untenable, since the deficit,
the crush savings turn out to be the "best lawyers." That is, do not go to jail
. The opposite of what is "preached" and legislation in our country. We have to
ask first, which is the goal of the current Criminal Law. Perhaps the punishment
of criminals and their inoculation, understood as separation from society for t
he tranquility of this. Second, if we identify dangerous criminal with Security
measures, which aim pursued. Crime prevention assuming the principle of proporti
onality in the duration of action (as grading of the danger), not as punishment
but as a duty of care and rehabilitation state of the mentally ill, to which we
must respect their rights and freedoms as citizens, rejecting, therefore, all af
flictive nature and all with the purpose of obtaining healing through medical tr
eatment clinic (as indeed the Supreme Court in ST of June 9, 2003 in f ° of Law
4) or placement if necessary for medical treatment. In this sense, "medical tre
atment, which aims to cure a patient," expressed in the parliamentary debate of
the LO 10/95 was approved by the new Criminal Code, Amendment No.. 294€Popular
Parliamentary Group. The Criminal Law does not fight crime by grief and safety m
easure, if it is true that the legal consequences of crime are far off and secur
ity. This is because the people implementing security measures under Article 101
 of the CP, they are not criminals but mentally ill. Therefore, the Criminal Law
does not fight for the sick, but establishes his medical treatment. The measure
is therefore not a legal sanction. The measure does not intimidated, nor able t
o intimidate someone who is not likely to be intimidated by the standard (genera
l prevention). Nor does it prevent
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special measure, since it is subject to those who do not have to re-socialize, b
ut to heal. Therefore, the political-criminal should be different. The term "haz
ard" is vague and uncertain due to the objective difficulty to judge of danger a
nd it is not nothing more than to issue, in short, a trial of probability. We sp
eak to predict human behavior. It may be easier to set a series of personality t
raits that are more frequent among groups demonstrably dangerous. Yet define a c
ollective, not dangerous individuals. The ability of expert psychiatrists to pre
dict violent behavior, has been seriously questioned (Mullen, 1984; Christie, 19
82). The A.P.A. (American Association psychopathological) (1983), highlighted in
an obvious way, the difficulty and likely the inability of psychiatrists to pre
dict the probability that a patient may offend again. To predict a dangerous sta
te we must consider two elements: - Diagnosis of criminal capacity - Diagnostico
social maladjustment. The first shows the "aggressiveness" (hatred or passion i
n the implementation of the act) and "emotional indifference" as components of "
harm" and the "selfishness" (not affected by the impact that the completion of f
act may have against him), and "emotional lability" (not conditioned by feelings
surrounding the action), as components of "inintimidabilidad." The second is to
highlight the traits of temperament, the "skills" and "instinctive needs, which
lead us to know the motivation and the general direction of criminal conduct, b
ut are not sufficient to explain the transition to action. Well, despite all thi
s, we will get to know the evolution of the subject's personality as biographica
l or unknown environmental conditions will affect your personality, and thus abo
ut future events. Tardiff (1989) notes the importance of initial diagnosis, thro
ugh interviews with the patient, family and third persons to give adequate infor
mation on the impulse control of the patient. Find any ideas or thoughts of aggr
ession, threats, delusional and hallucinatory symptomatology. Along with this di
agnosis is very important to report "high", it is not enough based on clinical c
onsiderations such as "The patient's clinical situation is
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stable ", but must be based on the prediction that the patient is not a threat t
o himself or to the general population. Barcia (1993) notes that one of the best
predictors of violence, could be the type of crime, since the danger usually re
fers to a specific behavior and not a "general conduct" and that depending on th
e type of disease mental. Already referred Birnbaum (1926), there are crimes "ty
pical" of certain diseases, especially in the "form" that have been committed, a
nd often offer specific characteristics. Locking up the sick in a prison is a hi
gh risk situation, an increase of helplessness, a stage prior to physical extinc
tion. As noted by Pedro Mata (1859), founder in Spain of Legal Medicine, in the
preface of one of his works "is an irrevocable purpose boot from the grip of the
executioner, the prisons and jails to certain victims of his poor organization
or their ailments, and transferred to the insane asylums or establishments, whic
h is where humanity is calling loudly. " On the other hand, we can assimilate th
e "custody" with the dangerous criminal and thus conclude that in reality it is
a security measure, whose ultimate objective is to replace the inept police when
their objectives: to prevent leakage, ensure presence at trial, securing eviden
ce, protect witnesses and victims. This is to prevent new crimes (dangerous crim
inal), yet undeniably punitive nature (although for all is clearly not intended
as an early implementation). However,€punishes a person to see if he should be
punished, which is no less absurd. Especially if the sentence of acquittal becau
se it contradicts the principle of presumption of innocence. In this case we fin
d Art. 2 of art. LEC 503., In which it can be arranged custody "to avoid the ris
k that the accused committed other criminal acts." It provides, as noted by Gera
rdo Landrove, "a presumption of guilt," thereby devaluing the meaning of an inte
rim measure that becomes a security measure, with the aggravating factor that ha
s not even come to prove that the accused has committed a crime . Greater degree
of repression arises by reason of the application of art. 502.4 LEC., As noted
by Manuel Diaz Martinez, to establish the existence of "sufficient basis for cri
minal liability" plus incorporating the authorship of guilt is required for proc
essing (which requires a prima facie case) because it is forbidden Judge to orde
r the imprisonment of
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a process over which there is evidence for the occurrence of a cause of exemptio
n or termination of criminal responsibility. Thus the Court of 1st Instance and
Instruction in the DU Vinaros 12/04, of 4-0204 you know that "remembers X remand
ed in custody for alleged crime of Art, 153 CP Get entered in the commands are s
ent to the accused is alleged to be affected by paranoid schizophrenia. One of t
he keys to understanding the dangerous criminal may be the different interpretat
ion that is made of the grounds for exclusion of culpability. Thus, it is possib
le to distinguish between exclusion of a large guilt, which would exclude both t
he guilt and the danger, thus remaining free of the scope of criminal law, which
would leave, also, without application of security measures, exclusion of guilt
restricted, which would exclude only the guilt but not the danger, which would
justify the imposition of security measures. Such would be the case of "justific
ation", which would exempt exonerated the fact not being objectionable, but woul
d still remain illegal victim's right to compensation for damage. But in this ca
se, it should also be excluded criminal law and get it up only civil law. It is
preferable that these people receive treatment in social welfare services, as th
ey would be better addressed outside the criminal justice system and prison exec
ution, as the Correctional Psychiatric Hospitals do not stop being prisons and a
s such are isolated both geographically and psychologically the community. In th
is sense it is remarkable that there is skepticism about the effectiveness of in
carceration as a means of rehabilitation, that is, as a means of preventing the
recurrence of crime. The treatment model, I have no doubt, require rehabilitatio
n based on community rather than incarceration. For this it is essential to citi
zen participation, which has a direct bearing on the effectiveness of the implem
entation of the measure, aimed at preventing recidivism, as it aims to make the
rehabilitation treatment under more favorable conditions for social reintegratio
n of the mentally ill . This requires the close cooperation of municipalities an
d communities with NGOs to strive to provide necessary housing and a suitable jo
b. In another way the measures taken in respect of medical treatment carried out
in compliance with the safety measure is not sufficient to achieve social reint
egration. We transfer the idea that what is demanded from the State is "to provi
de humanitarian environment Correctional Psychiatric Hospitals in which meet the
safety measure mental patients to pay a debt
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society. " The State can not, without more, take the idea of revenge, punishment
, which prevails in most of society. Another fundamental problem is how you coul
d measure the results of new forms of treatment and rehabilitation. Directly rel
ated to this is the qualification that all staff should be working in a prison p
sychiatric hospital. That is, everyone should have knowledge of psychiatry, it s
eems logical. The officers should be selected in a special way, being right peop
le for this type of work, so different from a conventional prison. No more would
have knowledge and teaching skills and psychological well as psychiatric knowle
dge. This would facilitate the implementation of safety measures based on scient
ific knowledge.
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