THE DEFENITION OF PUNISHMENT
ДАТА ПУБЛИКАЦИИ: 01 сентября 2005ОПУБЛИКОВАЛ:
Punishment has become an increasingly problematic and controversial category in the last forty years or so. Particular punishments such as death penalty have become of wider divisions. Hanging is a means to an end. It can not function as a deterrent. It would so function that certain criminals justly deserve to be executed, whatever the deterrent effect of the penalty. Prisons have become a focus of controversy. Libertarian lobby argues that prisons have failed, they serve no purpose but to degrade inmates and to breed hardened criminals and should be abolished. An economy-minded lobby calls for shorter sentences, reserving prisons for the most serious cases.
Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke before the British Royal Commission on Capital Punishment:
"Punishment is the way in which society expresses its denunciation( обличение) of wrong doing. And, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not." (1950)
The latter view expressed the opinion that demands longer sentences for serious crimes, mandatory sentences, and more prisons as the most effective means of checking a supposed slide into lawlessness.
Both the forces that criticize particular forms of punishment from a libertarian and reformists stance and the forces that berate the present penal regime from a `law and order` stance create a climate in which modern means of punishment have failed. Climate of failure is to give credence to those justifications of punishment and purpose of punishment that is least concerned with success or failure.
The purposes of punishment:
1. to minimize the punitiveness of sanctions;
2. to reduce the ritual of vengeance ;
3. to raise the morale of the law-abiding.
Punitive sanctions need to know why we punish and what the use of penal sanctions can or cannot accomplish.
Libertarians who aim for a utopia in which there are no punitive sanctions and ultra- conservatives satisfied with ritualistic vengeance can dispense with the question. Educating people not to expect punishment to succeed ought to be a primary liberal goal.
The goal of this work is to overlook the development of particular penalties, and to analize the differences in sentencing in countries of America, Europe and Arabian world.
The punishment also not be "excessive." When a form of punishment in the abstract rather than in the particular is under consideration, the inquiry into "excessiveness" has two aspects.
1. The punishment must not involve the unnecessary and wanton infliction of pain.
2. The punishment must not be grossly out of proportion to the severity of the crime.
Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act. And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate
B. Analysis of death penalty
Many cases of allegedly innocent defendants should be eliminated from the list of penalties. In several respects, the methodology of punishment list is deficient. The premises used in selecting and pronouncing particular defendants as actually innocent do not in fact support that conclusion or do not assist in determining the actual number of mistaken convictions under the current capital punishment jurisprudence.
In terms of the risk of condemning the innocent to death, the "admittedly somewhat arbitrary" time frame used by the DPIC list of 1970 is over-inclusive. Although the United States Supreme Court did abrogate the completely discretionary, standardless death penalty statutes in 1972, it was not until 1976 that the Court upheld new death penalty statutes. These statutes had two features:
1. They narrowed the range of death penalty eligible defendants
2. They permitted a convicted murderer to produce any relevant mitigating evidence supporting a penalty less than death.
Mitigating evidence may frequently include evidence that will raise so-called "residual doubt" or "lingering doubt" about the defendant's guilt or otherwise raise doubts about a defendant's level of culpability due to mental impairment or some other factor.
In 1976, the Court abrogated statutes with so-called "mandatory" death penalties which did not permit consideration of mitigating evidence. These mitigating factors include lingering doubt about guilt, mental impairments, and limited culpability.
To the extent that the DPIC list includes defendants convicted and condemned under statutes that did not meet the Court's 1976 standards, those cases should be excluded. Since those defendants were not tried under today's "guided discretion" laws, they were condemned to death without the finding eligibility or the opportunity to present mitigation. Their sentences are not reliable or relevant indicators for evaluating the effect of today's statutes on the conviction and sentencing of the "actually innocent". Implicitly, the Cooley article accepts this premise by limiting its time frame to cases that were actually disposed of after the 1972 Furman decision. The mistake, however, is in not further limiting the time frame to defendants sentenced to death after their state enacted the appropriate "guided discretion" statutes after 1972.
The death penalty and disappearance have become a recurrent theme, and the creation of new methods to degrade Arab citizens seems to have been granted priority by certain regimes. Torture can take place before or during interrogation, or at any time during detention.
There have been reports of a number of cases of torture and maltreatment of detainees in Palestinian prisons and detention centers. Victims are not confined to those suspected of criminal acts but also include those whose `crimes` are political association and the expression of opinion. Torture is practised by:
- govenmental parties through security and police forces;
- intelligence agents;
- prison wardens;
The 1984 treaty against torture that was enforced in July 1987 represents 33 articles over three chapters. The treaty equated the commission of the act leading to torture with incitement to torture, approval of torture and silence about torture. The agreement seeks to prevent torture. According to the agreement, member states cannot extradicte individuals to other countries if there is reason to believe that they will be exposed to torture. The agreement against torture can act as a model for local legislation, but it is understood that specifity of local legislation should also be preserved.
Unfortunately, little progress was made in this domain because of cold war. The idea was revived in 1989. The UN General Assambly requested the legal committee to prepare the draft law of the International Criminal Court. The comittee referred to the bylaws adopted by the Security Council in 1993 pertaining to the criminal court and related to ex- Yugoslavia.
The comitte met twice in 1996. In February 1997 the comitte met again. In June 1998 a conference took place in Italy to endorse the bylaws of the criminal court. The conference adopted the bylaws, which resembled a multilateral agreement whose ratification was conditional on the signatures of at least 60 countries. Only 35 UN member states have signed the agreement, although negotiations are still taking place.
Crimese under the jurisdiction of the court are:
2. Crimes against humanity
3. War crimes
The criminal liability pursued by the ICC is an individual liability that cannot transcend the individual or his possessions. The main principal of criminal liability is to apply the law impartialy and without discrimination over all people regardness of their immunity or their capacity as government officials, whether they be Prime Miisters, Presidents or Members of Parlament.
A numbe rof member states have been seriosly thinking about the grave consequences that could arise if state officials are to comitte serouse crimes. For example, Ilyakim Rubinstein, the Israeli govenment`s legal adviser, warned in a recent article that a number of Israeli officials would have to stand trial in the ICC for “war crimes” committed as a result of Israel`s policy in the Occupied Territories and Lebanon. Pubinstein also submitted a report to the goverment informing it of the changes that have made it possible for people to file complaints against politicians in office. In commenting of the incident, he quoted British lawyers saing that Pinochet would have no immunity if he was brought before the international tribunal.
Rubinstein also referred to war criminals in Kosovo. He concluded that Israel was still far from any indictment for war crimes but warned that the matter should be taken into considiration.
Torture in PNA-controlled areas
Torture and maltreatment have led to the death of a number of Palestinian detainees held the interrogation in various detention senters and police stations. The deaths took place between 1994 and 1999 and were caused by the security services.
1. Farid Abu Jarbou`, 28, from Rafah was severely beaten and tortured to death by agents of the General Intelligence Agency (GIA) in Gaza Central Prison (Asaraya)
2. Muhammed Al Jundi, 33, from Jabalya, died on 21 April 1995 when four masked men openedfire while he was being takem to his prison cell.
3. Khaled Al Habal, 56, from Kharbata Al Misbah in Ramallah, was detained on 10 August on 1996 during a feud between his family and another family. The PSA arrested him together with his 5 children. They were transferred to the Ramallah police station. The farther was accused of the murder of a woman. On the next day, he was declared died and his courpse was send to autopsy. Upon inspection, it was found that he had a 6 cm lond wound and 3 cm wide in the scull. Blood was also found accumulated in his right ear. He also had bruises in his back and other parts of his body. Despite all this, it was said that he committed suiside.
Human Rights Organisations (HROs) have hasitated in voicing criticism against the security services, taking into consideration the sensitivity of the peace process and the fragility of the political situation. However, since the security services have received some training and the PNA has become slightly more settled politically, the above arguments and excuses are not longer valid. LAW has decided to brake the taboo of silence and take a radicial stance to challenge any further practice of torture imposed on people detained by the security service.
The victims stated that they were beaten, tortured, deprived of sleep, held in uncomfortable postures, deprived of going to the toilets, insulted and threatened with rape.
PNA is mainly the Executive authrity`s domination over the legislative and the juditial authorities. This, coupled with the indifference to human rights and the blatant undermining of the State`s democratic structure, has made the security services into the rulers and custodians of the Palestinian people. More dengerous is that the Palestinians are beginning to believe that it is necessary to satisfy the security service. The Executive has exploited the political conditions and the conflict with Israil has become an effective and much-used way of covering up or justifying the mistakes made by the Authority.
The PNA pledged to respect human rights as it`s indicated in the Declaration of Independence. The minimum precautions have been taken to prevent the recurrence of torture.
The issue of torture needs to be challenged by the various sectors of sociaty.ther is an urgent need to exert pressure on the security services if they are to garantee their committement to the following international principles:
1. Application of international law in local and national legislation
2. Issuance of national legislature,whose function is to apply international standards in the homeland
3. Adopt the Amnisty International programme, which includes official condemnation of torture by the State authorities, restriction of solitary confinement,provision of detainees by sufficient safeguards and information about their rights, etc.
HROs should demand the formation of independent investigation committees in the event of serious torture crimes in the absence of real and effective legislative and judicial authorities. HROs and other NGOs should unite the efforts to urge the PNA to provide more protection to victimised individuals.
4. A reader on Punishment/ Ed.by R.A.Duff, David Gasland: Oxford Univ. Press;-1994, 351p.
5. Walker, N.(1980) Punishment. Danger and Stigma (Oxford)
Abstruct form of punishment means whether capital punishment may ever be imposed as a sanction for murder ;
particular - the propriety of death as a penalty to be applied to a specific defendant for a specific crime.