Currently, the United Nations (UN) has issued minimum rules for the treatment of prisoners, and is issuing the law on minimum standards on the rehabilitation of convicts, in which there must be various types of detention facilities.
Prison law concept
Set of rules that regulate the rehabilitation of individuals subject to a custodial sentence.
Penology, it is said that the penitentiary is born parallel to criminal law, penology arises when it becomes formally a prison sentence, and it is still used to this day as a means to obtain a change in personal and mental behavior of criminals having as a basis the corrective sanction of his deprivation of liberty.
Prison science
For the author, Luis Garrido Guzmán considers that prison science is a part of penology that deals with the study of the penalties of deprivation of liberty of its organization and application, with the aim of reintegrating the convicted professionally and socially, and attributes to penology, the responsibility to study the remaining penalties such as the restrictive ones of liberty or law, pecuniary, capital or as well as those of post-prison care, at present, prison science is spoken of as a set of norms that help the readaptation of the delinquent getting closer to other sciences such as: medicine, psychology, physical education, etc.
The author Sánchez Galindo defines the penitentiary as a professional who gathers theoretical knowledge and experience to consistently achieve the goals of criminal enforcement, within penal establishments at any of its levels, maximum or minimum security.
Prison or criminal executive law
Just as substantive criminal law is divided into a special part and a general part, the theory of penitentiary law or criminal executive law, in turn, must be divided into two aspects: the study of the penalty as such and the sanction that the offender must suffer during the fulfillment of said penalty also the prison law must be determined to the regulations and doctrines related to the execution of prison as well as to its interpretation leaving the aspect of the other sanctions that are not deprivation of liberty, philosophical aspects and analyzes that are not scientific.
Projection of prison law
According to Dr. Eugenio Raúl Zaffaroni, who considers that all science is the set of partial knowledge delimits the entities he deals with defining them as the object of science, that is, there is no longer a science that deals with the study of everything. The delimitation of the entities that such science deals with constitutes the projection horizon of said science.
Thus, these horizons must be established before prison law, Zaffaroni says that criminal sanctions have a re-educational nature and that this character must be developed in the time established in custodial sentences because prison science must be considered as such and not as an accessory branch of criminal science since its entity is the re-education and readaptation and execution of the sentence imposed on a criminal.
For Dr. Gustavo Malo, the object of study of prison law should be understood as the set of rules related to the application of penalties and security measures that will be the legal entities in this matter and also add that the end of prison science in our country is expressly limited to the provisions of art. 18 of the Mexican political constitution and that its primary entity is the social rehabilitation of the individual, which must be achieved through education and work as well as training for it.
Likewise, Dr. Gustavo Malo Camacho considers prison law to include the proposals and studies carried out by the UN organization regarding the prisoners' treaty, as well as its readaptation and instruction and training without disregarding its corrective nature.
Purposes of prison law
The purpose of criminal law is the preservation and protection of legal assets that imply the highest values of man, to allow a harmonious and peaceful social coexistence, which can translate into a pragmatic aspect of crime prevention, also the end of Penitentiary law is the execution of the sentence and all that it has indicated in the law, seen from a formal perspective, even though the doctrine tells us that the punishment has broader purposes.
Mezger.- Affirms that all human action has an end and that punishment as human and state action in the field of law has as its purpose the prevention of crime, likewise such crime prevention can be carried out in the legal world by two ways acting on the community, these are, the legal community or acting on the individual who tends to commit a crime or has committed a crime.
In the first case there is talk of general prevention that tries to act on the community and in the second case it is said that it is special prevention that tries to act on the individual who has committed a crime and is subject to a penalty which he states covers three moments; the injunction. The imposition, and the execution of the sentence.
In the scope of application of prison law.
It is worth mentioning that every branch of law has a temporal, personal and territorial space, where it will be applied to the case of prison law also has these characteristics, so we will begin to say that its temporality refers to the validity of prison law and so that this comes into effect according to the articles; 71,72, and 89 of the Mexican Political Constitution and this is from its promulgation in the Official Gazette of the Federation, regarding the regulations of the penitentiary law because our country has a system of execution to the administrative authorities This will be in effect for as long as the executive power has.
Speaking of this principle of non-retroactivity, it is inapplicable in case the new regulations are beneficial to the accused, prosecuted or sentenced, the author Malo Camacho, comments even when the laws seem obsolete or stop being applied, they will be of current law as long as they are not abrogated or repealed.
Regarding the territoriality in which the prison legislation must be applied, there is a federal and a local jurisdiction as provided in art. 18 of the Mexican Political Constitution.
It is the responsibility of the federation to exercise said federal penitentiary jurisdiction through the federal executive and the secretary of the government, who will issue the guidelines for the execution of the penalties as regards the local jurisdiction; and this is carried out in the federal entities, through the same secretariat, authorizing said authority that by signing the agreements, which are legally applicable, those sentenced under state jurisdiction compile their sentence in federal institutions, and in practice they The reverse situation has been presented that the federal convicts are compurning in state institutions.
The signing of bilateral international treaties is also planned in order to transfer nationals sentenced abroad to serve their sentences in the country and vice versa, which broadens the application of territorial space.
Areas of personal application
A personal exception refers to personal causes that prevent the application of the sanction, either due to the nature of the individual that the person who prevents its application has, or due to its incapacity. Within this personal sphere we have three that are diplomatic immunity., the constitutional jurisdiction, and the imputability.
Diplomatic immunity.- A foreigner who has this quality may only be tried in his country even when he has committed crimes in our country and this results, an exception to the principle "locus regit actum" which means the application of the law and will be that of the place where the criminal acts are carried out.
Constitutional jurisdiction.- It is the personal exception of the constitutional jurisdiction indicated in our Magna Carta for the protection of the function of some public servants or individuals such as: legislators, the president of the republic, etc. Those who will not be able to be judged until when the special procedure has been carried out to strip them of the aforementioned constitutional jurisdiction.
The personal exception.- that has the unimputable.- Regarding the application or execution of a custodial sentence, there is a case in which states of unimputability are presented, such as the declaration of existence or survival of a mental illness in which In this case, the application of a security measure in accordance with the characteristics of the patient will proceed.
Crime prevention
The two formal aspects have been considered from the different points of view; are general prevention and special prevention, such preventions not only corresponds to the state but also to society. For its part, general prevention; It is a social pedagogical action on the community, through an uncertain intimidation that prevents crime and educates the consciousness of said community towards human feelings, contrary to the commission or execution of a crime through the threat contained in the law and through and jointly with the special prevention; that it is the individual pedagogical performance that can be physical, mental or psychic corporal and that acts on the community when the crime is punished.
Special prevention
It acts individually in a corporal way through the confinement the loss of rights and even, the material suffering applied to the individual or for the mental or psychic suffering of the loss of certain rights that cause the concrete individual to a penalty and here it must be taken into account. special prevention, attention that these actions must act within the framework of respect for human personality and not through terror, as in modern law, the human rights of both the victim and the perpetrator are respected.
Society's participation in crime prevention
It is important to mention that crime prevention is not a function of criminal law, but a practice of prison law through which a policy is developed through specific strategies that can be observed from social, cultural or economic contexts and that are planned, stimulating the interest of the community as well as the mobilization and participation of society and its express institutions for it, there are three types of strategically planned preventions, in models of social affectation which are:
1. Primary prevention.- That is identified with the conditions of the physical and social environment that provide opportunities for crime or precipitate criminal acts, is constituted in public, social and economic political strategies from other areas and try to influence criminogenic situations and At the root of the same crime, an example of this are education, employment, home, rest and recreation.
2. Secondary prevention.- The focal point of secondary prevention is found in criminal justice policy and its organization and practice, in addition to general and special prevention, this is found in the early identification of criminogenic conditions and influences. In these conditions, the preventive role of this policy controls the media, urban planning, the design and construction of buildings, as well as the preventive means; like private insurance.
3. Tertiary prevention.- It deals with the prevention of recidivism, by the police and other agents of the criminal justice system, avoiding the condition of criminal acts, and imposing measures of informal sanctions such as fines, arrests and as an organ. As an auxiliary to justice, due to the limitations of these sanctions, tertiary prevention is often reduced to repressive measures.
Prisons emerged from the 16th century with the aim of separating criminal entities from society and are classified into four periods in their history:
1. It is the period of the custodial sentence.
2. Exploitation period.
3. Correctionalist and moralizing period.
4. Period of social rehabilitation or re-socialization (modern).
The preventive prison
It is a precautionary measure of a personal nature that creates the individual in whom a permanent state of their deprivation of liberty falls, supported in a public establishment that for that purpose their destiny, and said measure is decreed by a competent judge, and this will be issued if there is suspicion that the person in preventive detention has committed a crime or participated in it, and is assured for the sole purpose that he does not escape the action of justice and guarantee the execution of the sentence.
The functions of preventive detention
According to the authors, Bernaldo de Quiroz says that the function of preventive detention, among others, is:
1. Prevent the leak.
2. Ensure presence at trial.
3. Secure evidence.
4. Protect witnesses.
5. Avoid offensive concealment of crime behavior.
6. Guarantee the execution of the sentence.
7. Protect the accused from his accomplices.
8. Protect the criminal from the victims.
9. Avoid the crime is concluded.
10. Prevent recidivism.
11. Guarantee damage repair.
12. Protect the victim of the criminal and his accomplices.
For the foregoing, preventive detention becomes a security measure, as contemplated in our legislation in its second title of sanctions and security measures in article 24 of the penal code of the state of Tlaxcala, such preventive detention will only be imposed when the alleged perpetrators are found, in flagrante delicto and must be the exception and not the rule to curtail the freedom of the alleged criminals.
Prison as a penalty
The emergence of the prison sentence has to do also between the theological and the secular remembering that the Catholic Church until the 19th century had great influence on regulatory matters in governments, since the Middle Ages there was no independence or a distinction between crimes and the sins put were gotten to confuse when being persecuted some, by the church and others by the state their sanction and execution was left to the latter.
Through canonical criminal law a great space is opened to normative criminal law on the reflection and imposition of penalties for repentance and approach to the divinity of the offender, and for the expiation of their punishment the imposition of penalties for the achievement of forgiveness..
During the Middle Ages, two branches were developed in criminal law, the religious branch and the secular branch, the first being less serious than the second, that is, regarding the type of offense and the type of penalty, being in charge of the imposition of penalties., of venial sins to the church and the imposition of penalties of mortal sins to the state.
Within the twelfth and thirteenth centuries the secular system contemplated in the event that there was no financial compensation for the offended or his family, the revenge of blood which was requested and regulated from the feudal lord and if it was between fiefs to the king for the seventeenth century The church repeals this type of punishment when considering it contrary to the divine spirit, thus demonstrating its interference in medieval criminal law.
The first penal institutions
It is understood as an antecedent of the first penal institutions, they are the correction houses that were establishments destined to deposit people who had committed a crime, with the purpose of avoiding their recidivism and isolating them from society since they were considered socially disturbed, and they could serve their sentences and corporal punishment.
One of the first institutions of this type is Bridewell's The House of correction in 1552 and it was followed by that of Oxford and later spread throughout England, having great influence in developing the prisons that we know today, first starting in Amsterdam the house of correction that later it would be the oldest prison that is known, and this was initially for men and said prison already towards a distinction between men and women, young and old, in this house of correction works were established that should be organized by inmates under the discipline of whipping, and one that was considered terrible at the time, which was the water cell in which the inmate should be constantly basing the water if he did not want to drown.
In 1704 in what was the bishopric of Saint Michael in Rome by Pope Clement the first prison in which disciplinary penalties, such as the water cell and the stocks and more oriented towards ecclesiastical repentance, are removed so that once granted his forgiveness was again returned to the ecclesiastical community.
In the second half of the eighteenth century, criminal thought began to revolutionize, and a thinker named John Howard found his legislation on penalties and humanitarian values worldwide through his treaties promoting the relationship between punishment and offender and crime for this reason. considers him as the father of modern penitentiary.
The author Barrata proposes in his treatise concrete programs of policies oriented to the suppression of the prison, and to the precision of rights and services that can be developed in the context of the prison institution as long as it subsists, the following points are stated:
1. The functional symmetry of the programs aimed at former detainees.
2. The presumption of normality of the detainee.
3. Exclusivity of the objective criterion of conduct in determining the disciplinary level.
4. Re-grouping criteria for independent programs.
Institutions today
The institutions dedicated to compiling the prison sentence are generally located in old buildings, in convents, or adapted barracks with a sinister optical mix. Throughout history, these places have remained places of fire and away from all human rights, and the The use of these buildings has been a frequent practice in Mexico and in many other countries, since the idea is that buildings used as prisons must be as gloomy as the penalties imposed there, since people are considered different. secluded, to free people.
Currently the United Nations (UN) has issued minimum rules for the treatment of prisoners, and issues the law on minimum standards on the rehabilitation of convicted persons, in which there must be various types of detention facilities:
to. Penitentiaries.
b. Psychiatric hospitals for criminals.
c. Inmate hospitals.
d. Observation centers.
and. Open institutions.
F. Colonies and penal camps.
g. High security institutions.
h. Special establishment for young people.
i. Preventive establishments.
j. Establishments for administrative sanctions, and arrests.
k. Establishment for minor offenders.
conclusion
It should be noted that the executive power is its modalities, both local and federal, it is in charge of the censuses and ceferesos in our country, in addition to seeking the deprivation of liberty, the readaptation of the offender so that he returns to society and with it do not re-offend.
Bibliography
Luis Rodríguez Manzanera
Prison law
Edit. Porrúa
Political Constitution of the United Mexican States
Editorial porrua
Penal code for the state of tlaxcala
Edit. Cajica.
