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HANS-JÖRG ALBRECHT rights and freedoms, creating a double bind in face of defensive and offensive roles of human rights.* And, in fact, human rights traditionally had been invoked to restrain criminal law and punishment through providing various layers of shields which effectively guide the process of making criminal law and defining criminal offences, restrain sentencing and punishment and establish protective standards of criminal proceedings. Strong shields are considered to be of particular importance in this field as criminal law and punishment (and here in its most serious forms of the death penalty and life imprisonment) have been held to present significant sources of human rights violations. The first layer of these shields places restraints on the creation of criminal law through implementing well-known and well-established leading principles which request strict subsidiarity and the use of the threat of criminal punishment as a last resort. These principles reflect what Hans-Heinrich Jescheck has called the “fragmentary character” of criminal law.® Penal theory and doctrine insisting on a “last resort” approach have been backed up by criminological research and theory which in the 1960s and 1970s emphasized risks of overcriminalization, adverse effects of criminal punishment and advised adoption of alternatives to criminal law and diversion from criminal proceedings. Also, today, it is assumed that the punitive approach to crime control (and adversarial processing of offenders) has failed. The diagnosis of failure is grounded on the view that the current system of criminal punishment in some regions has spiraled out of control. The tremendous increase in the number of prisoners in the United States and a lesser though still significant rise in prison populations in many other countries in fact come with a heavy burden for society. The consequences are felt in the prison systems with overcrowding affecting the conditions under which prison sentences are served and in societies (and communities) which have to deal with re-entry problems and accommodate scores of hardened ex-prisoners. High rates of recidivism and the revolving door syndrome are perceived to be signs of the ineffectiveness of criminal punishment and to indicate that criminal punishment is not the solution of crime problems but is a substantial part of these problems. The root cause of ineffectiveness is seen in the strong stigma coming with criminal punishment (in particular imprisonment) and its exclusionary power which may result in defiance, facilitates entering criminal careers and makes it difficult to quit a life in crime. The finding of failure is also based upon the conclusion that the conventional criminal justice system does not cater to the needs of crime victims nor to the needs of the communities where victims and offender live. 4 Francoise Tulkens, The Paradoxical Relationship between Criminal Law and Human Rights, Journal of International Criminal Justice 9 (2011), 577-595, 579. ° Hans-Heinrich Jescheck — Thomas Weigend, Lehrbuch des Strafrechts. Allgemeiner Teil, Berlin, Duncker & Humblot, 1996, 52. + 104 »
