Disputation: Morten Holmboe
Cand. jur. Morten Holmboe at the Department of Public and International Law will be defending the thesis Prison or not: On the theory and practice of meting out punishment for the degree of Ph.D.
The disputation will be held in Norwegian.
Photo: Jon Strype
- Professor em. Jon T. Johnsen,, University of Oslo
- Professor Thomas Elholm, University of Southern Denmark (1. opponent)
- Supreme court justice Kirsti Coward, The Supreme Court (2. opponent)
Chair of defence
- Professor Tor-Geir Myhrer, Politihøgskolen
- Professor Ulf Stridbeck, University of Oslo
Why a society punishes offenders is an old question. In this thesis, I discuss this question in light of how the Norwegian society chooses between prison and less severe sanctions. In addition, I look at how the court’s choice between prison and other sanctions influences the convicted person’s rights in other aspects. An important finding is that the theory of general deterrence is difficult to justify as a guideline for the choice of reaction in concrete cases.
The theories of general deterrence
In Norway, the theories of deterrence are seen as the reason for the criminal system – in general, but also as guiding the choice between types of punishment in concrete cases. The theory of general deterrence may mean that people abstain from crime because of a risk-assessment, but may also mean that the use of punishment leads to a general habit of obeying the law – and that people rest assured that justice is done, leading to a sense of safety in the society.
The legislator’s Choice
If a person charged has made an unreserved confession, the court shall take this into account when passing sentence. This rule is meant to encourage a guilty suspect to confess, but there is reason to discuss whether even an innocent defendant may be tempted to confess in order to avoid a harsher punishment.
When a fine is imposed, a sentence of imprisonment shall be executed if the fine is not paid. The authorities will first try to get the money from the defendant’s legal assets. Still, 77 % of the defendants who are supposed to go to prison, pay the fine. Does the money come from friends and relatives, or from crime?
In 2010, the punishments for several types of crime were made harsher. Given the theory of deterrence, it would be reasonable to assume that the legislator had a hope that the longer sentences would lead to less crime. But in assessing the need for more prisons, there is no discussion on the value of deterrence.
The Supreme Court’s practice
The theory of general deterrence is applied even in concrete cases. In certain areas, there has been established guidelines for when to apply prison – but general deterrence has been given different weight in comparable areas, e.g. concerning fraud against insurance companies and fraud against the social services. In drug cases, a promising rehabilitation may lead the court to abstain from using imprisonment. In cases concerning sexual activity with children under 16 years, the perpetrator may be remitted if the parties are about equal as regards age and development. The concrete limits of the rule are laid out by the courts, which means that it may be difficult for young people to know when their activity will be liable to punishment.
The consequences of the punishment
Certain rules concerning the rights of the convict are based on the kind of punishment (prison or not) that was meted out (e.g. the right to inheritance or insurance). As the defendant’s personal situation may have a considerable bearing on the punishment, I question whether the rules should be more flexible.