Abstract
Criminological literature has dedicated considerable efforts to identifying a common pattern in contemporary criminal policy developments, as well as discussing the factors that may explain these changes. Yet, the studies carried out thus far have almost exclusively focused on macro level analysis (political discourse and legislative analysis), disregarding the micro level; that is, the activities carried out by the agents in charge of supposedly putting into practice a new allegedly punitive control culture. The present study tries to fill, in some measure, this vacuum by providing knowledge of Spanish criminal court activity this century regarding homicide convictions. In short, our aim is to verify whether Spanish criminal courts have varied sentencing along the same lines as the (alleged) new punitive culture, or have remained oblivious to it, instead operating as a deterrent to its development. Furthermore, the study provides a detailed analysis of homicide sentences in Spain this century with the aim of identifying some explanatory factors regarding the final sentence.
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Bottoms A. (1995). The Philosophy and Politics of Punishment and Sentencing. In Clarkson C.M.V. & Morgan R. (eds), The Politics of Sentencing Reform. Oxford: Clarendon Press.
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It seems there is general consensus regarding the existence of a “punitive turn” in Common Law countries (USA, UK, Australia and New Zealand), except Canada (although this situation appears to be changing: Webster C. & Doob A. (2015). US punitiveness “Canadian style”? Cultural values and Canadian punishment policy. Punishment & Society, 17(3)). However, various authors have questioned the existence of this trend in continental Europe. For example, “Scandinavian exceptionalism” is frequently discussed (Pratt J. (2008) Scandinavian Exceptionalism in an era of penal Excess. British Journal of Criminology, 48; although see: Barker V. (2013) Nordic Exceptionalism revisited: Explaining the paradox of a Janus-faced penal regime. Theoretical Criminology, 17(1). The situation is also disputed in other countries, such as Germany (Wenzelburger G. & Staff H. (2016) German Exceptionalism? An Empirical Analysis of 20 Years of Law and Order Legislation. Politics & Policy, 44(2) or Slovenia (Flander B. & Mesko G. 2011, “Punitiveness” and Penal Trends in Slovenia: On the “Shady Side of the Alps”?. Punitivity. International Developments. Vol.1, 227–249.
Matthews R. (2005). The myth of punitiveness. Theoretical Criminology, 9(2), 175–201; Kury H. & Shea E. (2011) Punitiveness-An Introduction. Punitivity. International Developments. Vol.1, p. 13; Hamilton C. (2014). Reconceptualizing Penality. Towards a Multidimensional Measure of Punitiveness. The British Journal of Criminology, 54, p. 321; Li E. (2015). The cultural idiosyncrasy of penal populism. The Case of Contemporary China. The British Journal of Criminology, 55, p. 146.
For example: Cavadino M. & Dignan J. (2006). Penal Systems, A Comparative Approach. London, Sage.
Kury H., Brandenstein M. & Obergfell-Fuchs J. (2009). Dimensions of Punitiveness in Germany. European Journal of Criminal Policy Research, 15, 63–81.
For example: Del Rosal Blasco B. (2009). ¿Hacia el derecho penal de la postmodernidad?. Revista Electrónica de Ciencia Penal y Criminología, 11(8); Díez Ripollés (n. 3 above); Larrauri Pijoan E. (2009). La economía política del castigo. Revista Electrónica de Ciencia Penal y Criminología, 11(6), 1–22; Silva (n. 2 above). Díez Ripollés J. L. (2013a). Rigorismo y reforma penal. Cuatro legislaciones homogéneas (1996–2011). Parte I. Boletín Criminológico, articulo 2/2013(142); Díez Ripollés J. L. (2013b). Rigorismo y reforma penal. Cuatro legislaciones homogéneas (1996–2011). Parte II. Boletín Criminológico, articulo 3/2013(143).
Du Bois-Pedain A. (2017). In Defence of Substantial Sentencing Discretion. Criminal Law Forum, 28(3); O’Malley T. (2017). Judgement and Calculation in the Selection of the Sentence. Criminal Law Forum, 28(3); Roberts J. V. (2012). Structuring Sentencing in Canada, England and Wales: a Tale of Two Jurisdictions. Criminal Law Forum, 23(4).
Johnson B., Van Wingerden S. & Nieuwbeerta P. (2010). Sentencing Homicide Offenders in the Netherlands: offender, victim, and situational influences in criminal punishment. Criminology, 48(4), 981–1018; Kim B., Sponh C. & Hedberg E. C. (2015). Federal Sentencing as a complex collaborative process: judges, prosecutors, judge-prosecutors dyads, and disparity in sentencing. Criminology, 53(4), 597–623; Wermink H., Johnson B. Nieuwbeerta P. & De Keijser J. (2015). Expanding the scope of sentencing research: Determinants of juvenile and adult punishment in the Netherlands. European Journal of Criminology, 12(6), 739–768.
For example, – Blumstein A., Tonry M., & Van Ness A. (2005). Cross-National Measures of Punitiveness, Crime and Justice, 33(1), 347–376; Kury (n. 9 above).
Hough M., Jacobson J. & Millie A. (2003). The Decision to Imprison: Sentencing and the Prison Population. Prison Reform Trust.
Cavadino M., Dignan J. & Mair G. (2013). The Penal System. An Introduction. 5ª ed. Sage, p. 86.
In Germany, Kury and Shea (n. 6 above p. 12) consider that “sentencing trends over the last few decades give no clear indication of an increase in punitiveness”. In the Netherlands, Van Dijk J. (2011) Trends in Dutch prisoner rates, Punitivity. International Developments. Vol.1, p. 214, also states that “sentencing tariffs per category of crime have remained remarkably stable over the last three decades”.
Garland (n. 4 above).
Hough et al. (n. 13 above); Cavadino, Dignan & Mair (n. 14 above)
Initially we wanted to carry out our research from 1995, which is when the new Criminal Code entered into force. However, it was found that the two main databases that publish sentences in our country began to consolidate and provide more reliable information from the year 2000.
Del Rosal (n. 9 above).
The criminal reform “frenzy” has finally also reached this crime, which was modified in part by the Organic Law 1/2015.
“Audiencias Provinciales” is the name given to the criminal courts that in Spain have the power to judge crimes of homicide in the first instance, either through a jury process (in case of completed homicide) or through the ordinary procedure (called “Sumario”, in the case of attempted homicide). In Spain there is a court of this type in each province, so 50 Provincial Courts, to which we must add the two corresponding to the autonomous cities of Ceuta and Melilla. In turn, in each Provincial Court there may be more than one Chamber or Section dedicated specifically to criminal matters (for example, in Barcelona the Provincial Court has 22 Chambers or Sections, of which 11 are “Criminal”).
Article 138 of the Spanish Criminal Code (SPC) states: A person who kills another will be punished, for homicide, with the penalty of imprisonment for ten to fifteen years. Regarding the “fault element” for homicide in Spanish criminal law, the offence requires “dolus” (intent to kill another person). Apart from the homicide offence defined in art. 138 SPC, articles 139 and 140 define the offence of “asesinato” (aggravated homicide).
Available at: http://www.poderjudicial.es/search/indexAN.jsp.
Having analysed all the existing sentences in the database, we are sure that the sample finally analysed is much larger than we would have had to analyse if it were possible to calculate a representative sample. On the other hand, we must point out that, for unknown reasons, the database analysed shows a significant decrease in the number of sentences included in 2003. We did not want to exclude this year from the analysis, although the results presented for this year must be read with caution.
A security measure, such as confinement in a psychiatric hospital, is imposed when the convicted person is declared immune or semi-immune from criminal liability due to a mental disorder (articles 101 to 104 CP).
Aggravating or mitigating circumstances aggravate or mitigate criminal liability, thereby directly influencing the duration of the sentence. There is a fixed list of mitigating (art. 21) and aggravating circumstances (art. 22) in the Spanish Criminal Code, although art. 21.7 allows judges to consider any mitigating circumstance similar to those set out in the list. Their effects in the Spanish penal system are (1) assessed and (2) limited. Assessed because the Spanish Criminal Code requires the judge to take them into account when imposing the sentence and determines what specific penological effects they may have. And, limited because the effects are usually small as judges cannot go beyond the sentencing limits legally established for the specific crime. They only fix the grade (lower for mitigating circumstances, higher for aggravating circumstances) at which the judge or court may impose the specific sentence (the sentence range in the case of completed homicide is from 10 to 15 years). However, article 66 CP, which establishes the rules for determining the sentence in the case of aggravating or mitigating circumstances, has become more complex with the successive penal reforms and nowadays the judge or court has greater scope for discretion.
Incomplete exemptions from criminal liability (or incomplete exculpatory circumstances) are in fact extenuating circumstances (Article 21.1 CP), but they must be treated separately because they are privileged mitigating factors in the sense that they necessarily determine a more substantial sentence reduction than normal mitigating circumstances. In this sense, in accordance with article 68 CP, these mitigating factors do allow the sentence to be reduced beyond the limits established by law. For this reason, we have also included in this group mitigating factors that are deemed “highly rated” by the judge as they have the same penological effects according to Spanish Criminal Law. In the case of completed homicide, an incomplete exemption or a “highly rated” mitigating factor means that the range of the prison sentence must be from 2 years and 6 months to 10 years minus one day.
This is a significant feature of the Spanish criminal justice process: there is not only public accusation represented by the Public Prosecutor's Office, but it is also possible for any person who is a victim of the crime to appear in the case as a private prosecutor (Pérez Gil J. (2003). Private Interests Seeking Punishment: Prosecution Brought by Private Individuals and Groups in Spain. Law & Policy, 25, 151–172).
This is a high percentage, which is undoubtedly explained by the rigid sentencing system in Spain where the legal framework is not very extensive and CMCLs have a rather strong penological effect.
For example, the effect of an aggravating circumstance in attempted homicide (on average a sentence of almost 571 more days in prison, that is, approximately one year and six months) or an attenuating circumstance in the same case (on average a sentence reduction of 281 days). In turn, this can be compared with the greater effect that the same circumstance (an aggravating circumstance) has on the sentence for completed homicide (a higher average by 862 days).
Regarding possible reasons for the lower sentences for women see Johnson et al. (see footnote 11, p. 990); Wermink et al 2015 (see footnote 11, pp. 744–745).
Lawyers representing the victim or the victim’s family have the same procedural rights as the Public Prosecutor. Usually the private prosecution asks for a harsher sentence than the Public Prosecutor and our results show that this “extra-penalty” demand has an influence (although slight) on the final sentence.
Paredes Castañón J. M. (2016). Punitivismo y Democracia: las “necesidades sociales” la “voluntad popular” como argumentos político-criminales. Libertas-Revista de la Fundación Internacional de Ciencias Penales, 4, p. 165.
See footnote 26.
Funding
This research has been carried out in the framework of the research project “Sentence execution in the era of criminal law expansion” (DER2014-59743-P) funded by the Spanish Ministry of Economy and Competitiveness.
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* We would like to thank Editor-in-Chief Kai Ambos and Associate Editor Stefan Harrendorf for their helpful feedback during the review process and in preparing the final draft. We also thank Steven Kemp, Universitat de Girona, for his assistance regarding the English editing of the paper.
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Stancu, O., Varona, D. What about judicial punitiveness? A study of homicide convictions in Spain (2000–2013). Crim Law Forum 31, 251–275 (2020). https://doi.org/10.1007/s10609-020-09388-9
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DOI: https://doi.org/10.1007/s10609-020-09388-9