The idea of humanism in 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.
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)
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 (see table 1).
Sanction Imposed By Judicial Circuit (округ) and County
|1994 Sentencing Guidelines
||Criminal Punishment Code
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
2. to reduce the ritual of
3. to raise the morale of the
Punitive sanctions need to know
why we punish and what the use of penal sanctions can or cannot accomplish.
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
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.
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
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;
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
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
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.
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.
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
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)
form of punishment means whether capital punishment may ever be imposed as a sanction for
particular - the propriety of death as a penalty to
be applied to a specific defendant for a specific crime.