Michele Pifferi
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780198743217
- eISBN:
- 9780191803079
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198743217.003.0009
- Subject:
- Law, Criminal Law and Criminology
The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law ...
More
The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law framed by De Asúa on the dangerousness without crime, it compares the European solution of the measures of security with the US indeterminate sentence system, stressing the European attitude in favour of judicial sentencing jurisdiction. It examines the growth of penal administrative powers in the United States, focusing on the shift from legal rules to legal standards in sentencing discussed by Roscoe Pound, Felix Frankfurter, and Sheldon Glueck, and then describes the hybrid system of penal/administrative security measures provided for by the 1930 Italian Fascist Code. The chapter finally investigates the different positions on the powers of the judge in the sentencing phase debated at the Berlin Congress in 1930 and the ambiguities of the dual-track system.Less
The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law framed by De Asúa on the dangerousness without crime, it compares the European solution of the measures of security with the US indeterminate sentence system, stressing the European attitude in favour of judicial sentencing jurisdiction. It examines the growth of penal administrative powers in the United States, focusing on the shift from legal rules to legal standards in sentencing discussed by Roscoe Pound, Felix Frankfurter, and Sheldon Glueck, and then describes the hybrid system of penal/administrative security measures provided for by the 1930 Italian Fascist Code. The chapter finally investigates the different positions on the powers of the judge in the sentencing phase debated at the Berlin Congress in 1930 and the ambiguities of the dual-track system.
Michele Pifferi
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780198743217
- eISBN:
- 9780191803079
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198743217.003.0007
- Subject:
- Law, Criminal Law and Criminology
The chapter provides an analysis of the key role of the principle of legality for penal liberalism and of its fragmentation as a consequence of criminological theories and the individualization of ...
More
The chapter provides an analysis of the key role of the principle of legality for penal liberalism and of its fragmentation as a consequence of criminological theories and the individualization of punishment. The rise of the theory of social defence has constitutional consequences on the sentencing authorities, because a different distribution of powers between judiciary, legislative, and executive is needed and a broader administrative discretion is required. The chapter analyses how the dissatisfaction with the administration of criminal justice in the United States led to a strong criticism of penal individualism and its judicial safeguards, and fostered the bifurcation of criminal trial into two phases: the guilt phase (judicial and with all of the traditional guarantees) and the sentencing phase (delegated to administrative bodies). It finally examines the inconsistencies of US peno-correctional treatment, together with the reaction against the fallacies of administrative justice and the proposal of a sentencing ‘disposition tribunal’.Less
The chapter provides an analysis of the key role of the principle of legality for penal liberalism and of its fragmentation as a consequence of criminological theories and the individualization of punishment. The rise of the theory of social defence has constitutional consequences on the sentencing authorities, because a different distribution of powers between judiciary, legislative, and executive is needed and a broader administrative discretion is required. The chapter analyses how the dissatisfaction with the administration of criminal justice in the United States led to a strong criticism of penal individualism and its judicial safeguards, and fostered the bifurcation of criminal trial into two phases: the guilt phase (judicial and with all of the traditional guarantees) and the sentencing phase (delegated to administrative bodies). It finally examines the inconsistencies of US peno-correctional treatment, together with the reaction against the fallacies of administrative justice and the proposal of a sentencing ‘disposition tribunal’.
