The Concept of Indeterminate Sentence in the European Criminal Law Doctrine
The Concept of Indeterminate Sentence in the European Criminal Law Doctrine
The chapter analyses the reaction of the European legal culture to the US indeterminate sentence system, its theoretical rejection, and the building of a different method by which indefinite preventive detention was applied to dangerous offenders as a supplementary measure after punishment. It examines Garofalo’s proposal of a new criterion of punibility based on the temibility of the offender, the relationship between psychiatry and criminology, the concerns of liberal jurists for the implications of individualization, and their defence of judicial sentencing powers. The chapter also considers the theoretical impact of Durkheim’s and Tarde’s sociological retributivism on the European penal reformism, and analyses the dual idea of indefinite detention described by Prins as a reformation-oriented punishment or as a security-oriented measure. It finally examines the creation of a double penological regime, the ordinary retributive one for normal delinquents and the preventive one for abnormal offenders.
Keywords: Garofalo, dangerousness, social defence, indefinite detention, supplementary punishment, sociological retributivism, Émile Durkheim, Gabriel Tarde, Adolphe Prins, abnormal offender
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