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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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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)

Chapter:
(p.143) 7 The ‘New Penology’ as a Constitutional Matter
Source:
Reinventing Punishment
Author(s):

Michele Pifferi

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198743217.003.0007

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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