Reducing use of short-term imprisonment: the role of prior convictions and ”artbrotten”1
by professor ANDREWVON HIRSCH
The present article examines, briefly, certain stategies for reducing reliance on short-term imprisonment (”korta fängelsestraff” or for short, ”KF”). I will assume that KF is more severe than its alternatives of conditional sentence or probation. The reason (which I need not elaborate here) is that imprisonment, even for shorter periods, ordinarily involves a greater restriction of the person’s liberty than, say, probation. Invoking KF thus involves a step-up in the onerousness of the sanction, even if not necessarily a large one. I will assume, also, that KF has significant adverse collateral consequences, most notably, the special social stigma of being imprisoned; and the disruptive effects on offenders’ everyday lives (e.g., most Swedes have only 5 weeks holidays, so that a two-month prison sentence would disrupt their employment).
The emphasis in this article will be conceptual — particularly, on the rationale of using short prison sentences. Particular concern will given to questions of proportionality of sentence. In my analysis of such questions, I will be relying on the theory of proportionality that is sketched in my recent volume, Proportionalitet och straffbestämning (Uppsala: Iustus 2001).2 In speaking of ”short” imprisonment, I will be speaking of prison sentences of under one year — and particularly, of those under six months. Under present Swedish law, KF treatment is in principle permitted for cases in which the penal value is between two weeks and one year. Here, two major provisions govern the actual invocation of imprisonment: those relating to prior-convictions (återfall), and to ”artbrotten”. The former call for the use of conditional sentence or probation, instead of actual imprisonment, if the offender has no criminal record or has one that is not extensive. The second constitutes a partial exception to the first — and requires resort to short-term imprisonment for certain types of crimes, even upon the first conviction. Reducing the use of KF in the present Swedish sentencing structure would thus call for either of two steps: (1) altering the presumptions
1The author is grateful for comments provided by Karin Påle, Petter Asp, and Nils Jareborg.2Andrew von Hirsch, Proportionalitet och straffbestämning, Uppsala 2001.