Judicial Judgments and Non-Privative Measures of Freedom: Legal Criteria and Social Impacts

Abstract

This paper focuses on the main lines of action that guide the debate between social and legal issues in the attribution of non-custodial penalties. The emphasis is specifically placed on the vulnerability to social exclusion and how to categorize offenders. This begins from the premise that certain stigmatizing attributes and relationships put the person in a position of fragility that conditions them to live their citizenship to the full. It is well known that the social rules and laws instituted at national level exist to condition and establish limits among citizens in order to promote healthy coexistence and non-compliance, which is punishable by law. Infractions are based on the social inadequacy or pathological disability of some citizens. The existence of social control mechanisms is felt by a large part of the community as a means of security and an advantage in guaranteeing the stability and sustainability of the social structure and organization. In this context, the judicial sentences with penalties and non-custodial measures are in force in the legal system with the principle of deterring offenders and reducing the contagion of experiences in the prison context. The judicial penalties, which initially were seen as merely having a compensatory function to the evil of crime, are answered with the evil of the penalties. This evolved to the current conception, and the purposes that should guide the application of the penalties are exclusive, preventive, general, and special. This change in perspective happens because the socialization of the agent assumes a preponderant role today in determining the judicial sentence (private or non-custodial sentences) to be applied in order to contribute to its regeneration, re-education, re-socialization or social reintegration. From the data collected, in the latest reports prepared in Portugal by the Directorate-General for Rehabilitation and Prison Services and by the Statistics Services of Justice, it is clearly seen that there has been a concern by judges/magistrates to articulate with these and other community structures to collect social information and social reports. This is done so that the penalties are attributed fairly, in order to take into account the regenerative character and to promote the social and professional reintegration of the offenders.