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Overuse of the Criminal Justice System: Analytical Approach, Rules and Practices
- from PART II - THEMES 2ÈME PARTIE. THÈMES
- Edited by Piet Hein van Kempen, Manon Jendly
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- Book:
- Overuse in the Criminal Justice System
- Published by:
- Intersentia
- Published online:
- 26 June 2019
- Print publication:
- 14 May 2019, pp 47-66
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- Chapter
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Summary
AN ANALYTICAL APPROACH
To properly assess to what extent a national crime control system overuses the punitive means at its disposal, it has to be established first what the legitimate goals are that the system must pursue through those means. Therefore, we need to adopt a precise analytical approach before being able to evaluate the abuses into which crime control actors could be falling. We deal with this topic in the following two sections.
PUNITIVE MODERATION AS AN OBJECTIVE
Current criminal policy has a strong tendency to compare different national crime control systems from the single perspective of their punitiveness. Punitive rigorousness or moderation has become the point of reference for most comparative analyses of ongoing criminal policy in different countries. Moreover, this approach has gradually gained significance as an evaluation criteria of national crime policies.
This framework assumes that national crime control systems, as they develop the necessary social interventions to obtain their preventive aims, should make sure that crime control does not inflict more social suffering than strictly necessary. It means that criminalization should not go beyond what might be considered vital for protecting essential public interests, and that those, either suspects or offenders, subjected to criminal law enforcement bodies will experience moderate and proportional distress as a result of their behaviour. This objective is so relevant that it justifies that comparative criminal policy evaluations are guided in accordance of the degree to which different national systems come closer to an optimum of punitive moderation, notwithstanding the achievement of preventive goals.
It is important to question why, despite the strong moral and cultural dependence to which the ideas of criminal restraint or rigor are subjected to, this approach has got itself into such a big predicament. Some reasons are worth mentioning. The hypothesis that most Western countries are moving towards a progressive harshening of the penal system has been very suggestive, and has permeated the criminal justice policy discussion. In turn, a program aimed at reducing the punitive pressure commonly has support amongst the field of criminal policy reflection. In addition, it has influenced the conceptual clarity and strength of this view, suggesting that a few indicators can explain it. Indeed, we should not forget that from the outset it has used easily accessible indicators of punitiveness, which has certainly increased its appeal.
Women in prison in Spain: their criminological and social invisibility
- from Part III - National Reports: 3ÈME Partie Rapports Nationaux
- Edited by Piet Hein van Kempen, Maartje Krabbe
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- Book:
- Women in Prison
- Published by:
- Intersentia
- Published online:
- 25 September 2018
- Print publication:
- 20 March 2017, pp 697-722
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Summary
INTRODUCTION
This chapter aims to take a close look at the reality of female crime in Spain. On the one hand, we analyze the singularities of this type of crime, which has, as with other neighbouring countries, experienced a significant increase in recent years. On the other hand, we focus on describing the current situation of women incarcerated in our prisons, an especially vulnerable group given their peculiarities and necessities. Lastly, the chapter establishes whether the current Spanish prison legislation echoes all or some of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures of Freedom for Women Offenders (Bangkok Rules, 2010). To this end, a detailed study of standards, both national and international, is essential.
INTERNATIONAL AND HUMAN RIGHTS FRAMEWORK
On 14 December 1955, during the Franco dictatorship, Spain joined the United Nations, putting an end to the international isolation that had occurred after the Second World War. On 24 November 1977, at which time the Constitution of 1978, which reinstated a democratic system, had not yet been approved in our country, Spain joined the Council of Europe, becoming the 20th State of the international organization. In the decade that followed, Spain joined NATO (30 May 1982) and the European Union (1 January 1986).
In relation to international and European conventions and treaties specifically concerning women, Spain has signed and ratified the following:
- The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW 1979), signed by Spain on 17 July 1970 and ratified on 5 January 1984, as well as the Optional Protocol (CEDAW-OP, 1999), signed by Spain on 14 March 2000 and ratified on 6 July 2001. Spain made no reservations in relation to the Convention, but made a statement declaring that “[t]he ratification of the Convention by Spain shall not affect the constitutional provisions concerning succession to the Spanish crown”.
- The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, adopted in Istanbul on 7 April 2011, signed and ratified by Spain on 11 May 2011.