Category Archives: criminal law

Res publica and corrupt public officers

In classical republican thought the duty of public officers is to promote the public good or general interest. When public officers use their positions to promote their own interests instead of those of the public at large, then republicans will speak of corruption.

To put straight forward: corruption is the abuse of public office for private gain at the cost of the public good.

Corruption has many forms, the bribery of civil servants – common in many parts of the world – is probably one of the most well-known forms. Another common type of corruption is the embezzlement of public funds by government officials.

In ancient Athens people who were suspect of being potential usurpers, could face ostracism – i.e. (temporary) exile from the polis. The idea behind this was that by removing such persons, they would not be a threat any longer.

In our opinion public officers who have been convicted for corruption should be punished with deportation to a penal colony. Additional their property should be confiscated, also they should be striped from their right to vote and hold public office.

Outline Penal Code

Below an outline of our proposal for a penal code. The proposed code is under construction and will with crimes, while lesser offences (calles contraventions) are treated in the offences code.

In the comment section you could propose specific provisions for this code, but recall that those should fit into our commitment to secular, liberal humanism. More specific we do not believe in victimless crimes, i.e. a crime should impose harm on either individuals or on society at large.
Continue reading Outline Penal Code

Crimes and contraventions

Virtually all legal systems do categorize illegal offences in two or three degrees of seriousness. We propose a distinction between two classes of offences: crimes and contraventions.

Contraventions are light offences, i.e. things we do not want people to do but also we do not deem as serious as we feel it necessary to punish them severely. Think about littering or walking your dog unleashed in urban areas. Continue reading Crimes and contraventions

Jail & Bail

Many people use the words “jail” and “prison” interchangeably. The distinction between this two typed of deprivation of liberty by the government is, however quite simple. Jail is the place were people are held before and during their trial. Prison is the place were we put convicted criminals.

When the police arrests someone, they will usually bring the arrested person first to the police station for [further] questioning. This stage usually takes several hours to a few days, and when it considered necessary to keep this person in custody for a longer period of time, the arrested will be transferred to jail.

The main purpose of keeping suspects in jail is to ensure they will show up in court, as it is difficult to convict people in absentia in many countries. Locking people up is, however, a drastic measure, in particular if one is suspected of a relatively minor crime.

There is a tension between jail and the presumption of innocence. This principle states that people should be held innocent unless proven otherwise. For liberal democracies this principle is of great importance as it protects citizens from arbitrary imprisonment. Before the authorities should be allowed to put you in prison, or to give you whatever punishment, they government should prove your guilt.

Because of this tension between protecting the rights of innocents on one hand and the desire to prevent suspects from fleeing the country, the concept of bail has been introduced. Bail is a sum of money one has to pay to leave jail, and this money is returned once one shows up in court (in your own trial). The height of this sum is set by the judge at a preliminary hearing.

In most cases suspects are allowed to leave jail if they pay bail, as most criminal court cases only involve minor crimes. There are, however, people who cannot pay bail, regardless of how low the bail is set. This is frustrating for poor suspects who are actually innocent, they are punished twice just for being poor as they are robbed of their liberty without due cause.

Bail is invented in more primitive ages, when technology was far less developed than today. Nowadays, we can prevent suspects from fleeing the country by electronic monitoring or in more extreme case with electronic house arrest. Hence in our opinion bail is outdated and should be abolished. Instead we are in favour of the following procedure:

At a pre-trial hearing the judge(s) should the decide whether a suspect should remain in jail (there are legitimate reasons to keep suspects in jail) or whether (s)he could await the trial in liberty. In the latter case it should be decided whether an additional measurements such electronic monitoring will be imposed. But in any way, if it is not necessary to remain in jail a suspect will be released regardless of his or her financial position.

Exit visas and international child abduction

In the modern world only a few countries, mostly with dictatorial governments, require their citizens or residents to buy a visa for leaving the country. Most countries only require foreigners to buy a visa for entering the country.

Since the freedom of movement, including the right of leaving one’s own country at will, is considered a fundamental human right, most civilized nations consider a general restriction on departing one’s country as an abomination. Only in a few serious cases (e.g. of convicted criminals or people awaiting trial), it’s nowadays acceptable for a state to put restrictions on their citizens’ freedom to leave the country.

This is all fine for adults who are capable to decide for their own whether they will leave the country or not. There’s these days, however, a huge problem of international child abduction. It’s our opinion that an exit visa requirement for minors can be an effective measure to combat international child abductions.

In most cases of international child abduction, a non-custodial parent take his or her own child to another country against the will of the custodial parent. Usually the motive is the result of a failed marriage or another intimate relationship and a subsequent custody battle between the parents.

The system we propose will works as follows. All minors, defined as all persons below the age of sixteen years, who will travel to a foreign destination are required to be in the possession of an exit visa. Only the custodial parent is authorized to apply for this exit visa, which does not mean that a child cannot travel with his non-custodial parent, it only ensures the permission of the custodial parent.

On the application form the custodial parent will declare the minor’s destination (multiple destinations are possible), the duration of the stay abroad, whether the child will travel alone or in company of an adult, and in the latter case with whom.

In order to ensure the cooperation of foreign countries, the passport of minors should contain instead of “valid for all countries”, the phrase “valid only with appropriate exit visa”. The subsequent effect of this measure, is that expiration of the exit visa, the minor will automatically remain illegal in the foreign country, and hence the authorities are obliged to extradite the minor back to his or her home country. And the person, mostly the non-custodial parent, can be charged of harboring an illegal immigrant.

How life would look like in a Penal Colony

Previously we have argued in favour of sending dangerous criminals to penal colonies, where the criminals have to stay but are further free to do what they want. In this post we have a closer look on what life would look like there.

First the colony itself has to be designed. A small space habitat as the Stanford torus designed for about 10,000 people, seems to be suitable to serve as a penal colony. There will be some non-convict staff, but since the convicts are not supposed to be under 24/7 supervision as in normal prisons, the number of guards can be kept low. It suffices to control the entrée and exit gates of the colony, in order to prevent escape.

Most staff would consist of medical and paramedic personal and probation officers. But the non-convict stuff should be no more than 25% of the total number of residents. Instead most of the services should be provided by the convicts themselves. For instance some convicts could get a barber’s license and provide hair cuts to other criminals, hence there will be no need for hiring non-convict barbers.

A part of the colony will be reserved for agriculture, and plots of agricultural land will be given to some convicts for the purpose of growing food for the colony’s residents. This will reduce the need of importing food, and hence saves public funds. Agricultural surpluses will be exported in order to cover the expenses of the colony.

Other convicts will be employed to run the shops in the colony, or in the waste management department. But importantly all employment of convicts is done voluntarily, because forced labour is generally less productive. However, taking up some employment will increase the likelihood of being eligible for parole.

Besides employment the convicts will need accommodation. Our suggestion is to house them in simple residential containers, which could look like this one. And here we have a picture of how the interior might look like. Though the floor plan of such container has some similarities with a prison cell, the main difference is that in this case the convicts are not locked op in their containers and are allowed to leave it at any time. Since the convicts are supposed to prepare their own meals, each container will have a cooking unit.

For those who think this treatment is “soft”, recall that everyone sentenced to penal transportation has to stay in the colony for at least fifteen years, during which they are isolated from their friends and family (given the remote location of the penal colony, visits are almost out of the question). And a person condemned to this penalty, has to live among people who have proven to be dangerous criminals. Further parole is not guaranteed, but is at the full discretion of the government.

Voluntary castration for sexual offenders?

In the comment section of our last post on indefinite sentencing, a few regular our commenters made several suggestions for the penal system of space settlements. One suggested that criminals serving an indefinite sentence should be given the opportunity to volunteer for medical experiments, another person argued for the reintroduction of exile. Fortunately for him, we have discussed the concept of penal transportation earlier on this site.

Penal transportation is a kind of exile, and the system of penal transportation we have proposed we combine the idea of indefinite sentencing with exile. In that post we also argued that certain sexual offenders are among the persons who need to be isolated from society.

The primary reason for sending sexual offenders to a penal colony is to prevent them from re-offending, but in case of these category of criminals there might be an alternative: voluntary castration. With castration we mean surgical castration. In countries as Germany and the Czech Republic it is a common practice to offer sexual offenders to undergo surgical castration in return of a reduce sentence. According to Czech authorities this practice is quite effective as almost none of the castrated convicts committed further crimes.

Our proposal is simple: if someone is convicted of a serious sexual crime and therefore sentenced to penal transportation, the convict is offered the choice between either surgical castration or serving an indefinite sentence in a penal colony, with the latter option being the default choice. Just as in the case of using prisoners as medical test subjects, no criminal will be forced to get castrated. Of course, proper regulations have to be devised to ensure the voluntariness of this choice.

A common objection to the idea of voluntary castration is that it’s unfair to female sex offenders. However, we can easily rebut this particular objection. First, most sexual offenders are male. Second there’s a female equivalence of castration, it’s called oophorectomy, the removal of a female’s ovaries.

According to Wikipedia oophorectomies have a multiple negative effects upon a women’s overall physiology. This includes the increased risk of osteoporosis, reduced life expectancy and an adverse effect on sexuality. Of these effects only the last is desirable. However, hormone-replacement therapy improves all of these effects, except sexuality. This because sexual desires in both male and female humans is triggered by testosterone, which is not included in a hormone-replacement therapy. Or more accurately for our purpose, it’s possible to exclude testosterone.

A more fundamental objection to castration as a method to prevent of sexual offenders to repeat their crimes, is that castration is only helpful for those sex offenders whose actions are sexually motivated. However, some sexual offenders aren’t motivated by sexual desires, but by other factors such as sadism. For those criminals castration is not an option, hence they will be transported to a penal colony.

NB. Our series on Education has been delayed due to the need for some more research and personal reasons.

Life insurance policies

Unfortunately it’s a common trope for people to kill their relatives or spouses, just in order to collect the insurance policy. In this post we will propose some rules aimed to deter people from killing people for the reason mentioned above.

1. Only the person whose death is covered by the policy is allowed to purchase a life insurance policy, provided that this person is an adult and mentally competent.

2. The maximum benefit which the insurance company is allowed to pay is equal to five times the annual income of the person who purchased the policy, at the time of purchase.

3. All life insurance policies have to be registered by the national financial authorities, in order to prevent people from buying multiple life insurance policies.

Ad 1. Too often someone purchase a life insurance policy on another person, possibly without the knowledge of this individual, only with the intent of of killing the insured. Since a life insurance policy is typically purchased to compensate the next of kin for the loss of income as a result of the death of the insured, there’s no reason to insure those who are not economically active.

Ad 2. Even if a life insurance policy is purchased in good faith, a beneficiary might be tempted to kill the insured for financial gain. By putting a limit on the benefits to be paid, the incentive to kill someone for financial gain is reduced.

Ad 3. In order to prevent people from circumvented rule 2 by purchasing multiple life insurance policies, it’s necessary that there’s a central registry of such policies. When a person wants to purchase a life insurance policy, the insurance company is obliged to check whether the applicant has already purchased such policy, if so the new application has to be refused.

Fines and revenue

But punishment must by definition hurt in some way, be it emotionally, psychologically, monetarily, or physically. Punishment must cause pain. (Peter Moskos 2011, In Defense of Flogging, p.114.)

In modern legal systems fines and imprisonment are the most common penalties which can be imposed on crimes. In classic criminology three functions of punishment have been described since the 18th century: deterrence, rehabilitation and incapacitation. The latter category seeks to disable a criminal from committing another crime in the future, be it through imprisonment or execution. In case of rehabilitation, the aim of “punishment” is to reform the criminal, so he will no longer be willing to commit crimes.

It’s quite obvious that fines or monetary penalties at best can only serve as a deterrent, fines do not incapacitate or reform criminals. Additionally we could argue that fines serve a retributive aim of punishment, as expressed by the quote by Peter Moskos. However, in order to function as a deterrent a punishment should be considered by the would-be criminal as unpleasant.

Deterrence theory is not without severe criticism, but monetary penalties suffer from another “flaw” in this respective. In most legal systems fines are expressed in absolute terms, i.e. the law prescribes a fixed (maximum) sum of money to be paid for a certain offense. The problem of this is, from the perspective of deterrence, is that different people have different levels of wealth.

Suppose that a certain action, say not cleaning up your dog’s feces in public space, is punished with a fine of 50 Stella. Both Alice and Bob have a dog, and as good dog keepers they regularly walk their dogs. But Alice has a monthly income of, say, 5,000 Stella whilst Bon only earns 3,000 Stella. Assuming both person need 1,500 Stella to live from, Alice has 3,500 Stella to spend freely and Bob 1,500.

Now we know that neither of them really like to clean their dog’s feces, and being rational persons they estimate how many times they can afford to pay the fine. Alice can afford 70 fines a month and Bob only 30. Consequently Bob would be more willingly to comply with the law, because one fine constitutes a larger part of his income than it does for Alice. Basically for Alice a fine is (subjectively) cheaper than for Bob.

This example clearly shows a problem with fixed fines from the perspective of deterrence theory: people with higher incomes will be less deterred by fines. At least this would be the case if we assume that deterrence is indeed a valid concept, which is at best only partially the case. But even from a pure retributive point of view, there’s a problem: poorer people are punished more severely by fines than their more affluent fellows. Though fines might be equal to all, but their effects aren’t.

In a normal market this would not be necessarily a bad thing, only criminal law is not meant to be an ordinary market of goods and services. Certain acts are banned because they are harmful to others, and consequently no one is allowed to commit these acts regardless of their wealth. If fines should be part of our legal system, than we should equalize the effects of this kind of punishment. In other words we should make fines dependent on the income of the offender.

One method to establish income dependent fines is by introducing day-unit fines. The basic idea here is: if we put you in jail for one day, you can’t work for a day. Hence you won’t earn any income on that day. More importantly if we put a rich person or a poor person in jail for a day, the unpleasantness for both of them is more or less the same. However instead throwing people in jail, we could just as easily give them a fine equal to their income of one day.

This approach is called the day-fine or unit-fine. One unit is equal to one’s income of one day, and in the law the fine is not expressed in terms of precise monetary amounts, but in terms of such units. In our example this could be for example a fine of unit for not cleaning the feces of your dog, instead of a fine of 50 Stella.

Another important issue related to fines, what to do with the revenues raised by collecting fines? One thing would be to use this money just to fund the government, but this would lead to a perverse incentive to politicians: in order to fill their gaps they will simply resort to increasing fines, regardless of whether this would affect crime in any way.

A better proposal would be in our eyes to put this revenue in a fund for the victims of crimes. This idea is related to the concept of restorative justice. We could use this fund directly to pay financial compensation to crime victims or indirectly. A slightly different idea would be to use this money to undo the effects of crime or to use this money for crime prevention programs.

Penal transportation

Some criminals pose such a danger for society, that they need to be removed from society. By doing this citizens are protected from future crimes from said criminals. Such “punishments” are meant to deter or to rehabilitate criminals, the sole purpose of such treatment is incapacitation.

Nowadays prison sentences are often used to incapacitate dangerous criminals. In this post we will defend the “reintroduction” of the ancient penalty of penal transportation. First we will define penal transportation. Then we will analyse what kind of crimes should be punished by penal transportation. Thereafter we will discuss the practical aspects of this penalty.

What is penal transportation and what is the difference with prison? Penal transportation is the compulsory sending of people to a penal colony as punishment for a crime. Prison is any building used to lock people up as a punishment. In the case of penal transportation, the primary restriction is that the convicts remain in the colony. Further restrictions might be imposed upon them, but this not a prerequisite.

In our model the convicts are basically free to do whatever they want, except leaving the colony. Only communication with the outside world will be restricted, not to punish the convicts, but to protect civilized society from them.

This is a great difference with prison, where people are locked up in a small room for a large part of they day. We believe that long prison sentences are a kind of psychological torture, which only make people more dangerous than less.

Since incapacitation is the primary purpose of penal transportation, rather than rehabilitation, we should restrict this penalty to the really dangerous criminals, those who are likely to commit violent crimes again. Further this suggests that this penalty should be of indefinite duration. Under Napoleon’s Code Penal transportation was basically a life sentence, whilst under British law transportation was for time (although after completion this term, one had to pay for his own return).

An indefinite sentence means that the duration of the sentence is not predefined. In practise the actual time served depends on the prisoner’s own conduct. This allows the periodic re-evaluation of one’s sentence. Those criminals who remain a serious threat to society might remain in the penal colony for the remainder of their lives. A minimum term to be served of fifteen years, is in our opinion reasonable.

Peter Moskos suggests that pedophiles, psychopathic killers and terrorists should be locked up for life. We would add (serial) rapists and violent repeat offenders to his list.  These are the types of criminals for whom we believe, penal transportation is appropriate.

The idea of a penal colony is to relocate criminals to a remote place, in order to isolate them from society. The remoteness of the penal colony serves a protection measure in case a convict would escape from the colony. The greater the distance between the colony and society, the more difficult it will be for the fugitive to return to the country.

Any space habitat can serve as a penal colony, no one can escape with out a space ship. The suicidal nature of escaping of a space based penal colony will refrain convicts from attempting escape. However, some might manage to escape by stealing or hiding in visiting space ships. In that case long distances will also mean long travel time, and this will allow authorities to recapture the escapees before their effective return.

What should deportees do in such a space penal colony? Rather than to lock those convicts up in a small cell, they will be encouraged to perform labour. But unlike traditional labour camps, employment will and should be voluntary. However, taking up a job would increase the convict’s prospects of an early release. Besides employment, the prisoners will receive opportunities for education.

What kind of work will those convicts do? First, they have to be fed. Hence farming would be a major source of employment in penal colonies, as would be the processing of agricultural products. Mining would be another possibility, especially if these penal colonies are located in the Asteroid belt. But also some of the supervising of the prisoners could be done by convicts. Of course, the higher levels of supervision will be carried out by non-convicts. But convicts with demonstrated good behaviour could be rewarded with lower level supervision tasks.