Populism in penal law

After some 20 revisions of the Penal Code since 1995, Spain is among the countries with the hardest criminal legislations. The toughening brought by the reform in 2010 is now to be further stepped up by a new turn of the screw, if success attends the proposal just announced by Alberto Ruiz-Gallardón. The justice minister in the government of the center-right Popular Party (PP) wants to apply a future prison sentence “subject to permanent review” to crimes of terrorism — a form of reintroducing the possibility of life imprisonment — and a category called “safe custody.”

These categories would allow prisoners who have served their sentences to be kept up to 10 years longer in prison, if it is considered that they are not rehabilitated. They are proposals already advanced by the PP, which were not incorporated in the previous revision of the Penal Code, owing to a lack of parliamentary consensus.

The form in which the minister has announced this measure, following upon a meeting with the father of Marta del Castillo (the girl murdered in Seville in 2009, in a notorious case that made headlines for months), indicates that the PP has succumbed to the temptation of what jurists call punitive populism — that is, the temptation of legislating in the heat of popular pressure generated by events that attract widespread attention in the media.

This manner of proceeding stirs up feelings of vengeance, and fosters a sort of compulsive irrationality, which may come to affect the principle of proportionality.

It is true that throughout Europe, various measures have been proposed in response to problems that are very difficult to solve: the treatment to be received by serial killers and pedophiles who have served their sentences, and who nevertheless show a high risk of relapsing into their ways.

The need to protect their possible victims has led to the introduction of additional measures such as the “supervised release” program approved in 2010. This category allows the judge to establish a regime of special supervision for persons convicted of terrorism or of sexual violence, who have served out their sentences but show no convincing signs of rehabilitation.

The proposal now being advanced would allow the judge to prolong imprisonment by as much as 10 years, as long as the prisoner appears to remain dangerous; and not only in the case of serial killers, in which the possibility of recidivism is associated with a psychopathic personality, but also in that of persons convicted of less serious crimes such as drug dealing.

This approach to penal law goes far beyond the terms of the reasonable debate concerning what to do with serial rapists and other psychopathic criminals, and sets foot upon the slippery slope of a penal law based on essentially discretionary judgments of potential danger, which may be in violation of the Constitution.