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Reinventing PunishmentA Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries$
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Michele Pifferi

Print publication date: 2016

Print ISBN-13: 9780198743217

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780198743217.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 January 2021

The ‘New Penology’ as a Constitutional Matter

The ‘New Penology’ as a Constitutional Matter

The Crisis of Legality in the Rule of Law and the Rechtsstaat (1900s to 1930s)

(p.143) 7 The ‘New Penology’ as a Constitutional Matter
Reinventing Punishment

Michele Pifferi

Oxford University Press

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’.

Keywords:   principle of legality, penal liberalism, sentencing powers, administrative discretion, bi-phasic trial, guilt phase, sentencing phase, Sheldon Glueck, Roscoe Pound, disposition tribunal

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