Problem Statement:
Various positions are held on the social function of criminal law and punishment, but it is the latter that interests us to serve the purpose of this investigation. Taking all the positions together, it is understood that there are two large groups that explain the function that punishment should have, on the one hand, we find Kant's theory of retribution, which perceives punishment as a necessary evil, as an end in itself, applied as an evil as a consequence of the production of another evil, that is, it understands it as an evil for evil.
On the other, there are the modern relative theories, which understand punishment as a good, as a positive thing, they see in it a means to obtain an end that allows to exemplify, therefore, it means that it must have two effects, one of general prevention, in the sense of discouraging those who have not committed crimes; and a second, of special prevention, while the penalty is assigned an effect on the offender, who does not commit crimes again.
Consequently, currently for few the penalty should have a retributive effect, of mere containment, while for most dogmatists it should be re-socializing, that is, it should be a means for the social rehabilitation of the offender.
Our general political constitution adopts the idea that the sentence, referring to the prison sentence, must be an end to readjust, therefore, it establishes in the second paragraph of article 18, that, “The governments of the Federation and of the States will organize the penal system, in their respective jurisdictions, on the basis of work, training for it and education as means for the social rehabilitation of the offender… ”. Likewise, in the last paragraph of this same constitutional article, it establishes that sentenced persons may serve their sentences in the penitentiary centers closest to their homes, in order to promote their reintegration into the community as a form of social rehabilitation.
From the penultimate paragraph of the article in question, the possibility of concluding international treaties follows, so that inmates of Mexican nationality who are serving sentences in foreign countries can be transferred to Mexican territory so that they can serve their sentence here; with the main purpose that the inmate is closer to his family, his community, which also translates into rehabilitation purposes.
However, what constitutionally should be the end of the sentence, is challenged, on the one hand, with reality-based criminology studies, which affirm that the prison sentence does not function as a social readapter, since it only fulfills a containment function and only in some cases.
On the other hand, the excessive and irrational use of it is reflected in the serious studies carried out by international organizations, such as the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD), according to which, In most of the prisons in the countries of the region, including Mexico, there is a problem of overpopulation, as the number of inmates greatly exceeds their capacity. This is observed with the unmanageable saturation that currently exists in, absolutely, all prisons in our Country.
Great authors definition
its definition is "doctrine of final causes", the scholastics established the principle that quidquid fit, propter finem fit = "everything that is done, is done for some purpose" and Aristotle, more concise still, enclosed his teleological doctrine in two words ouden mathn uden maten, "nothing in vain" and holy tomas de Aquino says if there were no ultimate end, we would never tend to anything; nor would any action come to an end; nor would the inclination to go towards something rest. If there were no first to move us towards an end, nobody would start doing anything, nor would any determination ever be made, but would be infinitely circled. If something is clear about everything, it is that if there is no destination, that is, an end of the journey, nothing starts. The doctrine sounds obvious, but it is in flagrant contradiction with the mechanism,that no causes or ends, as hard to gnaw intellectually as its opposite.
The Royal Spanish Academy tells us
The real meaning of the excessive use of the prison sentence with the teleological approach, we will analyze each word, consulted with the dictionary of the Spanish Royal Academy, where we will talk about whether they are really fulfilling that constitutional purpose., It tells us that the word use comes from the Latin. (Usus). Action and effect of using., Here this action and the effects that it has when using the law, the judge is implacable the way of using those powers that he has by law, likewise the word excessive tells us that it exceeds and goes out of rule, of In a certain way, many times the penalties are very high in relation to the crime, the word penalty comes from the Latin (poena). Punishment imposed according to the law by the judges or courts to those responsible for a crime or misdemeanor, this punishment becomes disproportionate infrahuman for the prisoner,which must be in the prison that comes from the Latin prehensĭo, -ōnis). Action to arrest or jail or place where the prisoners are locked and secured, in this way the teleology comes from the Greek. Τέλοσ, -εοσ, end, and -logy), which is the doctrine of final causes.
Teleological approach
Each time more of this summary is required, as it fulfills two functions. one when it fulfills the objective for which it was created, manages to insert people subject to a criminal process into social life without any problem of readapting to their new life and without social resentment to it, consequently to avoid the increase in Crime rates It is common for the people in charge of guarding and monitoring that the penalties are applied, become an irrational and excessive use of the sentence or the inmates themselves in order to correct or align the inmates with the intention of on the one hand, that they do not commit any crime again and, on the other, to discourage those subjects from committing a crime.If this fact is related to “teleology”, whose philosophical doctrine analyzes the “final” causes, then the excessive use of punishment within social rehabilitation centers will have the same purpose or objective applied to a specific process, which may vary so much.. In this essay we will focus on the analysis of the purposes and purposes of the excessive use of punishment with a teleological approach that defines whether it fulfills the purposes for which it is applied. Within the Mexican prison system, one objective or end is common. “A penitentiary system is effective if it achieves its proposed objective”In this essay we will focus on the analysis of the purposes and purposes of the excessive use of punishment with a teleological approach that defines whether it fulfills the purposes for which it is applied. Within the Mexican prison system, one objective or end is common. “A penitentiary system is effective if it achieves its proposed objective”In this essay we will focus on the analysis of the purposes and purposes of the excessive use of punishment with a teleological approach that defines whether it fulfills the purposes for which it is applied. Within the Mexican prison system, one objective or end is common. “A penitentiary system is effective if it achieves its proposed objective”
History of the problem
The penalty is considered as "a punishment consisting of the deprivation of a legal asset by the legally determined authority to those who, after due process, appear to be responsible for an infringement of the law, and because of said infringement. "
However, for some years now, in the penal dogmatics the dispute around the ends of the sentence has been maintained and the so-called remuneration theory has been disqualified. Authors such as Sergio García Ramírez, affirm that the prison sentence is in a stage of complete dysfunction, stating that,
It is intended that the prison be useful for the social rehabilitation of the inmate, insofar as the inmates operate as centers of integral education and preparation for work, which are the data proclaimed by article 18 of our Constitution, from the reform of 1965. However, this is where the challenges are most vehemently raised. Prison holds a paradox: to train free men in captivity, that is, to qualify for freedom in an environment other than freedom. This is a contradiction, it is said. On the other hand, the sad - if not terrible - situation of the prisons, conspires against the project to improve the inmates. In reality, the prison itself is subject to the most severe questioning…
In this situation, Rafael Garófalo: said "Do we need to say that the experience has always failed the faction of the correctional school, and that the prison cannot perform any of the beneficial effects expected of it?" It is "overwhelming, dishonorable, demoralizing for criminals who are not degenerate and who retain a residue of good feelings." It is ineffective with respect to the "perverted natures, the hardened criminals… It encourages the recidivist, at the same time that he vanishes, in those who have experienced it, the fear of the law and the shame of crime." It is useless for the victim and onerous for the State. Furthermore, it is unfair because it grants "free domicile and food to transgressors of the law and to the most perverse men,while very honest people often lack work and protection ».
Roxín also contradicts the old idea of retribution, since, for him, the author's guilt is the basis for the individualization of the sentence. However, the core of this theory only resides in the principle that one cannot go beyond the measure of guilt. For this reason, "retribution" has been transformed into the criminal law theory of guilt, and it follows that the retributive theory ceases to have legitimacy and significance for the execution of the sentence, as it is ineffective for its purposes..
Interestingly, the criterion that prevailed in the Fifth United Nations Congress for the Prevention of Crime and Treatment of Offenders (Geneva, 1975). Consistent in that, "An increasing number of people take the view that efforts to organize prisons to change prisoners are futile and should be abandoned."
The corresponding position is summarized as follows (referring to the prison sentence and its reality): «a) The fundamental conflict between the opposite objectives of the institution is insoluble. b) The medical treatment model is not relevant. c) None of the treatment modalities applied so far has had a demonstrable effect on prisoners. The institution has consistently failed in its role as the agency charged with changing people. d) The institutionalization of criminals is counterproductive. The informal society formed by the inmates of the institution ultimately shapes the inmate's reaction to incarceration, and efforts by facility staff to counter this influence are futile. As a consequence, the institution not only serves to dehumanize the criminal,it also reinforces negative values, instead of modifying them in a positive direction- e) The stigma of prison is indelible and tends to delay the reintegration of the offender in society. f) In the last analysis, the problem of the prison is itself ».
There are doctrines that justify retributive punishment and others that explain resocializing punishment. It follows that the current penal system has been shown to be inadequate (both in theory and in reality) compared to the predetermined purposes of utility, since the legal phases of the individualization of penalties, legal, judicial and penitentiary should allow correspondence of the penitentiary system with social rehabilitation.
The doctrinal and legal conceptions that prison is the remedy for crime are in crisis, since as a contradiction there is the phenomenon of crowded prisons and an uncontrolled growth in crime.
Enrico Ferri, pointed out that in order to prevent crimes, there must be criminal substitutes or equivalent prison terms, guidelines that allow guiding human activity through proposals for an economic, political, scientific, civil, religious, family and educational order. To reduce criminality in all citizens. However, it must be taken into account that the substitutes must be associated with the characteristics of the punishable act, the peculiarities of the inmate and the requirements of treatment under the sign of social rehabilitation.
Research objective:
Investigate the prison sentence and its great evils, in addition, the causes that originate its excessive and irrational use that the judges make of it; so that we can understand why alternative penalties to prison are not applied more frequently.
Justification of the investigation: Currently, the crime rate in our country has risen considerably, our reality shows it, criminals are increasing day by day in proportion to those released and conversely, daily they are detained without number of people, many of them for very serious crimes, in which unnecessary deterioration can be avoided because they do not need to be confined, in order to safeguard the social group, however, when entering any prison, it potentially becomes a dangerous criminal.
As a solution, paradoxically our authorities have chosen to increase the punishability of the criminal rates or, they build new prisons to try to solve the overpopulation, but the results have been negative, again, reality shows it.
These reasons give us all the reasons to think of other measures that will help us to reduce the production of criminals and, therefore, crime rates. Because of this, we are forced to search for sufficient mechanisms or strategies to help us punish criminals, disregarding as far as possible the harmful prison sentence; given that, by avoiding the harmful effects of seclusion, the person is allowed to maintain and improve his or her social ties, which is one of the factors that seems to have the greatest impact on not re-offending.
This design should be applied especially to those who do not show a decrease in socialization and therefore do not require intense controls, assistance or treatment in order to promote their social integration.
Hypothesis:
To avoid the production of true criminals, and therefore, the increase in crime rates, judges must make a non-excessive and irrational use of the prison sentence, applying any other penalty established in our substantive criminal law that does not contain the accused in the prisons, but that is enough so that he does not commit crimes again and to dissuade those who have not committed crimes. For this, it must be taken into account that crime is not serious, that is, that it can be applied when the judge considers that the offense committed by a person is not more serious, does not generate significant social damage or his criminal profile is one of considerable danger.
Thus, to the extent that this is done, we will have fewer people incarcerated and released, therefore, fewer criminals of enormous danger, which means a real decrease in crime rates.
In the same way, if we achieve the existence of a smaller universe of prisoners, of a prison overcrowding, it would allow a more efficient use of the always limited resources of the prison system, allowing the implementation of truly individualized treatments, which are the only ones capable of having success. Furthermore, by decreasing the number of the prison population, the economic costs are reduced to maintain a fairly large prison population.
In the reform dated 05/17/2012, of the code of criminal procedures of the State of Chiapas, article 202 establishes precautionary measures.
Theoretical framework:
In the present investigation we will use the following methods:
Historical: because we will go back to the reform of 1965, of article 18 of our General Political Constitution, and from it, we will analyze the function that the prison sentence has had, as well as its probable evolution or setback and its contrast or congruence with reality.
Comparative: because I am aware that we must take advantage of the errors and successes of other countries such as Spain, Argentina, Costa Rica, Chile and the United States of North America, to improve our criminal legal system, of course, aware of the need to consider the nuances typical of our reality, but from the perspective that comparative experience suggests.
Legal Systematics: because always in each of the parts of this investigation, the use of alternative penalties to prison within a legal framework will be considered and, in addition, we will exclusively take into account those established by our substantive criminal law.
Inductive: because we will reason from the particular to the general, from the parts to the whole.
Deductive: because I will make reasoning from a known general concept, to arrive at a particular unknown principle.
Logical: because ideas will be produced according to the laws of thought or that are followed from the antecedents or the concurrent circumstances.
Descriptive: because I will analyze the pain detailing its qualities and its defects, with the purpose of making known what it is and what it is.
Bibliography
- Barón Cruz, Martín Gabriel. A Look at the Mexican Prison System. INACIPE, México 2002. Quintero, María Eloísa and Polaino-Orts (Coords.). Günther Jakobs' Philosophical and Legal-Criminal Thought. Flores editor, México 2007. Rodríguez, Luís. The Penitentiary Crisis and Prison Substitutes. Second edition. Porrúa, México 1990. Zaffaroni, Eugenio Raúl. In Search of Lost Sorrows, Ediar. Buenos Aires 1989.---- Manual of Criminal Law, Ediar, Buenos Aires 1985.---- Criminal Systems and Human Rights. Depalma, Buenos Aires 1986.
Legislation consulted
- Political Constitution of the United States of Mexico Federal Penal Code Code of Criminal Procedures of the State of Chiapas.
Dictionary
Royal Spanish Academy.
Footnotes:
- An example of this is the treaty for the execution of criminal sentences, signed between Mexico and the United States, whose coordination is in the hands of the Office of the Attorney General of the Republic, Del Rosal, M. Cobo and Vives Antón, Tomás. General Part Criminal Law. Tirant Lo Blanch Books. Valencia 1999. Page 797.Cfr. www.unam.juridicas.gob. García Ramírez, Sergio. The development of prison substitutes. Nov / 02 / 2007.Garòfalo, Rafael: in ibidem.Beristáin, Antonio. Repressive Law Crisis. Madrid. Dialogue Notebooks. 1977. pp. 90-91.The Federal Penal Code, in its article 24, establishes the following as alternative penalties to prison: treatment in liberty, semi-liberty, work in favor of the community, confinement, prohibition of going to a certain place, pecuniary sanction, seizure of instruments,objects and products of crime, reprimand, warning, non-offending bond, suspension or deprivation of rights, disqualification, removal or suspension of functions or jobs, special publication of sentence, surveillance of the authority, suspension or dissolution of companies and confiscation of property corresponding to illicit enrichment. In addition to those aimed at unimputable and minors. Then, the judges have a wide, diversified and flexible catalog of criminal penalties other than prison, which allows them, according to individualizing criteria, to apply the one that best suits both the nature and circumstances of the event and the characteristics and author's needs.dismissal or suspension of functions or employment, special publication of sentence, vigilance of the authority, suspension or dissolution of companies and confiscation of assets corresponding to the illicit enrichment. In addition to those aimed at unimputable and minors. Then, the judges have a wide, diversified and flexible catalog of criminal penalties other than prison, which allows them, according to individualizing criteria, to apply the one that best suits both the nature and circumstances of the event and the characteristics and author's needs.dismissal or suspension of functions or employment, special publication of sentence, vigilance of the authority, suspension or dissolution of companies and confiscation of assets corresponding to the illicit enrichment. In addition to those aimed at unimputable and minors. Then, the judges have a wide, diversified and flexible catalog of criminal penalties other than prison, which allows them, according to individualizing criteria, to apply the one that best suits both the nature and circumstances of the event and the characteristics and author's needs.Then, the judges have a wide, diversified and flexible catalog of criminal penalties other than prison, which allows them, according to individualizing criteria, to apply the one that best suits both the nature and circumstances of the event and the characteristics and author's needs.Then, the judges have a wide, diversified and flexible catalog of criminal penalties other than prison, which allows them, according to individualizing criteria, to apply the one that best suits both the nature and circumstances of the event and the characteristics and author's needs.
Article 202. General principle.
The precautionary measures against the accused are those authorized by this Code, and can only be imposed by means of a founded and motivated judicial resolution, for the absolutely indispensable time and will have the purpose of:
a) Ensure the presence of the accused in court and in the other acts that his presence is required;
b) Guarantee the safety of the victim and witnesses to the events; and
c) Avoid hindering the procedure.
The judicial resolution that imposes a precautionary measure or rejects it is modifiable at any stage of the process, in accordance with the rules established by this Code.
In any case, the judge or court may proceed ex officio when it favors the freedom of the accused.
