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Creating a rational criminal law system has since the eighteenth century been an important issue of public policy on the European continent. In the course of time, the focus of reformers shifted from rationalization of existing legislation to more efficient crime control and prevention.
From Enlightenment to The Rehabilitative Ideal: Early Reform Efforts
The radical intellectual renewal in eighteenth-century Europe known as the Enlightenment provided the cause of legal reform with its essential political and philosophical principles: the rule of law, reason, liberty, and humanitarianism. In France, Montesquieu advocated the separation of powers in order to preserve judicial independence from the executive; punishment was to correspond to the gravity of the offense. At the same time, Voltaire vigorously opposed capital punishment and demanded that criminal justice concentrate on the prevention rather than on the punishment of crime. The foundations of modern criminal policy were laid by Italian writer Cesare Beccaria (1738–1794) in his famous book Dei delitti e delle pene (1764). Like the French authors, Beccaria favored the abolition of the death penalty as well as corporal punishment, supported the principle of proportionality between crime and punishment, and insisted that prevention be the primary objective of criminal policy. Enlightened monarchs of the late eighteenth century—for example, Frederick II (‘‘the Great’’) of Prussia, Joseph II and Leopold II of Austria, and Gustavus III of Sweden— introduced reform laws reflecting these ideas.
At the beginning of the nineteenth century, a wave of codification of criminal law swept through Europe, led by the Criminal Code of Austria of 1803 and the French Code pénal of 1810. These codes, for the first time since the sixteenth century, aimed at providing comprehensive legislation on crimes and punishment based on the rationalistic ideas of the Enlightenment era. In the following decades, Bavaria (1813), Spain (1822), Greece (1834), Norway (1842), Prussia (1851), Portugal (1852), Sweden (1864), Belgium (1867), and the Netherlands (1881) adopted criminal codes, and after efforts at national unification were successful, the great codifications of Germany (1871) and Italy (1889) concluded the consolidation of criminal laws in continental Europe. The criminal codes of Poland (1932), Romania (1936), and Switzerland (1937) were late fruits of the codification movement. Some of these codes, since frequently amended, still constitute the basis of criminal law in their countries.
Under the ancien regime, criminal sentences were often for corporal punishment, and the prisons that existed were infamous for the maltreatment of prisoners. The move toward a modern penitentiary system with the aim of reforming offenders began as early as in 1595 with the foundation of the Amsterdam penitentiary. In 1775 a prison providing individualized treatment for prisoners was opened in Ghent. In the nineteenth century, penitentiary reform was strongly influenced not only by the movement of the Enlightement but also by Anglo-American practices. Penology was a field of true internationalism. The first of a series of international prison conferences was held in 1846 in Frankfurt under the chairmanship of the liberal German jurist Carl J. A. Mittermaier, and in 1878 the International Penal and Penitentiary Commission was founded. In 1877 Charles Lucas and Bonneville de Marsagny established the Ecole Pénitentiaire in France, and at about the same time Eduard Ducpétiaux and Adolphe Prins reformed the penitentiary system in Belgium.
Reforms of The Criminal Law in The Nineteenth Century
The main goal of early reformers was the establishment of a rational system of criminal justice built mainly on the ideas of retribution and general deterrence. In the second half of the nineteenth century, the advances of natural sciences, the rise of psychology, anthropology, and sociology as new sciences, and the advent of philosophical positivism led to a change of paradigms in criminal justice. Punishment was no longer meant simply to visit an evil upon the offender in retribution for the crime he had committed, but criminality was viewed as a ‘‘moral disease.’’ Criminal justice, in analogy to medicine, now aimed at curing the offender of his evil tendencies, which were alternatively regarded as genetically or environmentally caused (see Dubber; Frommel). Leading European theorists of that era were Italians Cesare Lombroso, Enrico Ferri, and Raffaele Garofalo. In Germany, Franz von Liszt, departing from the traditional idealist notion of justice, was the founding father of an influential ‘‘sociological’’ approach to criminal justice, regarding the reform or, with respect to ‘‘incurable’’ criminals, the incapacitation of offenders as the goal of the sanctioning system. Together with Belgian Adolphe Prins and Dutchman Gerard van Hamel, von Liszt founded, in 1889, the International Union of Penal Law. The reform demands of this organization included the introduction of probation, the abolition of short-term imprisonment, the long-term incarceration of professional criminals, the creation of a special criminal law for juveniles, and the substitution of other sanctions for deprivation of liberty. Many of these proposals have since been introduced by legislation.
The Crisis of The Rehabilitative Ideal
Beginning in the early 1960s, the idea that criminal sanctions can reform and rehabilitate offenders was challenged from two sides: criminological studies found that rehabilitative efforts produced no measurable effect (Lipton, Martinson, and Wilks), and human rights advocates argued that harsh and sometimes undeserved punishment was concealed by the rhetoric of reform (American Friends Service Committee; von Hirsch). These insights led in many countries to a reorientation toward retribution (‘‘just desert’’) and incapacitation as the foundations of the system of criminal law. Sanctions of indeterminate duration, in particular, came to be regarded as misplaced in the criminal justice system. Although European legal systems did not go as far as some United States jurisdictions in establishing by statute fixed sentences or narrow sentence ranges for individual offenses, the 1970s and 1980s saw a clear movement away from the earlier medical paradigm of crime control and toward greater strictness. At the same time, some writers criticized imprisonment, which had since the nineteenth century become the backbone of the sanctioning system. Imprisonment was denounced as a fundamentally desocializing sanction, and reformers called for its replacement by noncustodial sanctions (restitution, fines, community service, probation) or at least for more open forms of corrections including furloughs and work release (Morris, pp. 12– 27; Jescheck, pp. 1975–1989; Albrecht, pp. 291– 305). Many legislatures followed up on these demands and enacted laws promoting the use of alternatives to traditional prison sentences.
Criminal Law Reform in Continental Europe
Several European countries have reformed their criminal laws since the 1970s. Many of the recently enacted codes, most notably those of Austria, France, Germany, Poland, Portugal, and Spain, share certain tendencies: in the general part, they tend to introduce differentiated rules on criminal responsibility (e.g., distinction among various forms of perpetratorship and accessorial liability, recognition of an inevitable mistake of law as an excuse); in the area of criminal policy, these modern codes strive to restrict imprisonment by implementing noncustodial penalties affecting the offender’s financial means (fines, restitution) or his ability to dispose of his leisure time (community service, weekend arrest). Although modern criminal laws on the European continent have these and many other features in common, each country has its own style and methods in dealing with crime. These different styles reflect variances in policy, history, and national culture. For example, some legal systems (e.g., Switzerland and the Netherlands) have traditionally relied on short-term imprisonment as the primary sanction for offenses of medium seriousness, and continue to do so, whereas others (e.g., Germany and Austria) have long tried to restrict the use of this sanction because they regard it as dissocializing the offender (Th. Weigend). It is thus necessary to look at each country separately in order to fully comprehend European legal reform. For this article, France, Germany and its German-speaking neighbors, Italy, the Netherlands, Poland, Spain, and Sweden have been selected as examples of recent developments on the Continent.
In France, several reform efforts were undertaken since 1810 to replace the antiquated Code Napoléon with more modern legislation. After many partial revisions of the code, finally in 1994 a completely new penal code entered into force (see Lazerges; Pradel). Contrary to the ancient legislation, the new code places the protection of individual (rather than state) interests at the top of the list of offenses, which begins with the prohibition of genocide (Art. 211-1 Code pénal). Since the abolition of the death penalty in 1981, the most severe sentence is life imprisonment, which is reserved for the most serious offenses. For other offenses, the code provides for fines (imposed according to the day-fine system, allowing the court to adapt the amount of the fine to the offender’s income); revocation of rights and privileges (e.g., prohibition to drive a motor vehicle or to use credit cards, closure of the defendant’s business); and community service. The 1994 code also eliminates all minimum penalties (Tomlinson, p. 9). Other notable features of the new code include the criminal liability of legal entities (Art. 131-37 Code pénal), the introduction of a proportionality requirement in the defense of self-defense (Art. 122-5 Code pénal), and the recognition of an excuse of inevitable mistake of law (Art. 122-3 Code pénal). These and other changes have brought French criminal law to the forefront of European criminal policy and theory.
Reform efforts in Germany began at the start of the twentieth century. Piecemeal changes, especially a larger field of application for fines, were achieved in the 1920s, but the Nazi regime and World War II prevented the further adoption of liberal reform ideas. After the war, an official reform commission produced a rather conservative draft law in 1962. This provoked a response from a group of younger and more liberal law professors, who presented an ‘‘Alternative Draft’’ (Alternativ-Entwurf ) of the general and sanctions part in 1966 (see Darby). In parliament, a compromise was achieved between these two drafts, with liberal ideas prevailing in the sanctions part and more conservative solutions adopted with respect to general theories of the criminal code. In the course of the reform, outdated offenses, especially in the area of sex crime, were abolished. Based on the parliamentary compromise, a largely revised version of the 1871 Penal Code came into force in 1975.
The revised code retained the traditional orientation toward individual responsibility based on subjective blameworthiness. This orientation has deep roots in German philosophy dating back to the idealist philosophers Kant and Hegel. Individual blameworthiness not only determines criminal liability but also the punishment an offender receives. Because this strictly guilt-oriented system cannot take account of an offender’s future dangerousness, German criminal law has since 1933 provided for ‘‘measures of reform and security.’’ Such measures, which include detention in a psychiatric hospital or a clinic for addicts as well as revocation of an offender’s driving license, can be imposed even when subjective blameworthiness is absent, for example, because the offender is insane. The 1975 reform legislation has retained and even extended this dualistic system of sanctions.
As regards penal policy, the most important aspect of the 1975 reform law was its emphasis on restricting the use of imprisonment. The new law decreed that prison sentences of less than six months were to be imposed only under exceptional circumstances, and the court should always consider suspension of the sentence as a preferred option. At the same time, fines were made more attractive as sanctions even for serious crime by the introduction of the day-fine system. As a result of these reforms, the rate of prison sentences has declined markedly, from more than one-third of all convictions before the reform to 19.6 percent in 1999 (Statistisches Bundesamt, pp. 44–45). More than two-thirds of sentences of imprisonment (68 percent in 1999) are suspended, which means that only 6 percent of convicted offenders are sentenced to serve time in prison. This rate has remained almost stable over the years since 1975. However, the rate of lengthy prison sentences (of more than two years) has increased since then. Terms and conditions of imprisonment, including prisoners’ rights with regard to furloughs and access to open institutions, have been regulated by statute since 1976.
Austria and Switzerland
Germany’s smaller neighbors Austria and Switzerland have taken different approaches toward criminal law reform. Austria, in close cooperation with Germany, revised its ancient criminal code in 1975, adopting many provisions that parallel the new German legislation, including the day-fine system, a preference for fines over imprisonment, extensive decriminalization of sexual offenses and abortion, and such preventive measures as separate institutions for mentally disturbed criminals and dangerous recidivists. Switzerland, on the other hand, has retained its criminal code of 1937. Typical features of this code are its strong reliance on various forms of imprisonment, including short-term imprisonment, as the main sanction, and the distinction—as in Germany— between penalties and security measures as reactions to crime (see Bauhofer). In 1993, a reform draft was presented, which would replace short-term imprisonment by noncustodial sanctions (see Schweizer Kriminalistische Gesellschaft). This draft has not yet been passed into law at the beginning of the twenty-first century.
The Italian Penal Code stems from the Fascist area; it was adopted in 1930 and reflected the dominant authoritarian ideology of its time. After the end of World War II, numerous efforts were made to replace the Codice Rocco of 1930 by more modern and liberal legislation, but only with very limited success. The death penalty was abolished as early as in 1944, and the Constitution of 1948 incorporated the principles of personal criminal responsibility and rehabilitation as the goal of imprisonment. Based on these principles, the Constitutional Court released several landmark decisions affecting criminal law. For example, the court declared that imprisonment for nonpayment of fines constituted unconstitutional discrimination against the poor, and in another decision required criminal courts to recognize an inevitable mistake of law as a valid excuse. In the field of corrections, parole was introduced in 1962, and later legislation provided for probation, community service as a substitute penalty, and work release of prisoners.
The most comprehensive attempt to introduce a new criminal code was undertaken in 1992, when a draft code was presented by a commission consisting mainly of academics. This draft aimed at reducing the number of petty offenses and at consolidating the criminal law by integrating offenses proscribed in other legislation into the penal code (Pisani). The draft was discussed by the government but not acted upon by the Italian parliament.
In the Netherlands, German and French influences on penal legislation are noticeable, but criminal policy is quite autonomous and independent. In 1811, the French penal code was imposed on the Dutch. It was superseded by the Dutch Criminal Code (Wetboek van Strafrecht), still in force today, in 1886. After World War II, Dutch criminal policy was well-known for its leniency and for the sparing use courts made of imprisonment. Many minor offenses do not even reach the courts but are disposed of by prosecutorial ‘‘transaction,’’ that is, a fine to be paid by the culprit without trial and conviction. Since the 1980s, however, rates as well as duration of imprisonment have risen sharply, mostly due to more severe treatment of an increasing number of violent and drug offenses ( Junger-Tas). Another noteworthy development is the frequent use made of community service sanctions.
Like all other Eastern European countries, Poland’s criminal legislation in the wake of World War II was heavily influenced by the Soviet Union and its specific ‘‘socialist’’ criminal justice (see Schittenhelm). In 1969, Poland replaced its liberal criminal code of 1932 by new legislation reflecting, both in the general part and in the description of offenses, the guiding ideas of socialism, especially the priority of the protection of social interests and the ‘‘substantive’’ notion of criminal offenses linked to the offender’s ‘‘social dangerousness’’ (arts. 1 and 26 § 1 Penal Code 1969). Penalties included capital punishment. The courts relied heavily on long-term imprisonment, especially in the 1980s when the government attempted to repress popular demands for greater freedom and democratic reforms. In the brief period between the onset of the Solidarity movement in 1980 and the imposition of military rule in late 1981, two independent commissions began work on a reform of the criminal law, yet their efforts seemed to lead nowhere when the political climate changed toward repressiveness and stagnation. It took until 1989 for the representatives of the reform movement to be able to participate again in the work of a commission installed two years earlier by the socialist government with the mandate of developing guiding principles for a new criminal code. In 1997 the efforts of this commission, which included conservatives and liberals but was dominated by the latter, eventually led to adoption, by the Polish parliament, of a new criminal code (for an overview see E. Weigend). The code of 1997 retained some features of its predecessor but in many ways went back to the traditions of the 1932 code and tried to integrate those with modern developments and criminal policy. By its orientation toward a rational, systematic, and humanitarian criminal law, Poland’s new code differs to some extent from the criminal code of the Russian federation (1996), which relies much more heavily on the heritage of the Soviet past (see Schroeder).
The Polish code’s general rules concerning criminal liability represent a mixture of traditional, indigenous solutions (e.g., the treatment of perpetratorship and accessories in art. 18), and formulations reflecting the latest advances of European criminal law theory (e.g., the definitions of intent and negligence in art. 9 and the treatment of necessity in art. 26). With respect to sanctions, Poland distinguishes between penalties, probationary measures, and security measures. The latter include commitment to an institution for the insane or for addicts (arts. 94–96 Penal Code). If the offender was criminally responsible at the time of the offense and therefore receives a criminal penalty, his sentence is reduced for time spent in an institution. Penalties include fines (to be imposed according to the day-fine system), imprisonment, and, as a holdover from the 1969 code, restriction of freedom (arts. 35, 36 Penal Code). Restriction of freedom consists alternatively in a duty to perform community service or a reduction of the offender’s regular wages, coupled with a prohibition of changing one’s place of residence without the court’s permission. In an important general directive for sentencing, art. 58 sec. 1 of the Penal Code provides that imprisonment can only be imposed if other, less restrictive sanctions are unable to fulfill the purposes of punishment. Such alternative sanctions include not only fines and restriction of freedom but also probation and the conditional dismissal of prosecution (arts. 66–68 Penal Code), which spares the defendant a criminal conviction if the offense is of lesser seriousness, the offender makes restitution to the victim, and fulfills other conditions the court may impose.
Reform efforts began in Spain immediately after the restoration of democracy in 1975. Capital punishment was abolished by the constitution of 1978, which also declared rehabilitation to be the goal of custodial punishment. It took until 1996, however, to replace the authoritarian and outdated criminal code of 1944 by modern legislation.
The new Penal Code of 1996 modernized the general part of the criminal law (for an overview see Cerezo Mir). Art. 1 explicitly states the principle of legality and extends it to penalties as well as measures of security and rehabilitation, and art. 5 does away with objective criminal responsibility. An inevitable error of law excludes culpability (art. 14 Penal Code), and attempts are punishable only when there is some measure of objective dangerousness (art. 16 Penal Code). The offenses are listed in a sequence that expresses the idea that individual interests have priority over those of the state. Some remnants of ancient legal traditions, such as special rules for the enhanced punishment of patricide and lesser punishment of killing a child born out of wedlock, were abolished.
In its provisions on penalties and sentencing, the code of 1996 establishes principles of modern criminal policy. The multitude of different forms of imprisonment, a characteristic of earlier Spanish law, has been replaced by a unitary type of imprisonment, supplemented by weekend arrest (with a maximum of twenty-four weekends) as a milder form of custodial punishment (arts. 35, 37 Penal Code). Fines, to be imposed according to the day-fine system, as well as community service are to be imposed for less serious offenses.
Sweden has been at the forefront of European criminal policy since the first half of the twentieth century. As early as 1921, Sweden abolished the death penalty in peace times (total abolition followed in 1974). In 1927 indeterminate sentences were introduced for recidivists, following the then modern trend toward preventive individualization of punishment. The dayfine system of imposing fines was adopted in 1931, and in 1937 imprisonment for nonpayment of fines was restricted to offenders who willfully refused to pay, which led to a drastic reduction in the number of prisoners (Cornils and Jareborg, p. 6). In 1965 a new criminal code (brottsbalken) went into force. This code was built on the idea of rehabilitation as the main purpose of criminal law, again reflecting the prevalent ideology of the time. Shortly after introduction of the code, the winds changed again: skepticism set in with respect to the possibility of rehabilitation, especially in custody, and Sweden was again quick to implement new insights. Indeterminate imprisonment was abolished for juveniles in 1979 and for recidivists in 1981. Although rehabilitation is still seen as the goal of corrections, a 1988 amendment to the criminal code has defined the ‘‘penal value’’ (that is, the objective and subjective gravity of the offense) as the main criterion for the selection and gradation of punishment (see Jareborg). According to the new version of the code (ch. 29 § 1 sec. 2), the primary consideration in sentencing is the harm or risk brought about by the offense and the offender’s subjective attitude (motive, intention, knowledge, or negligence) as to his deed.
Through all these changes, Sweden has remained wary of overusing imprisonment: in 1998, only 13 percent of all convicted offenders received prison sentences, and only 15 percent of those were for one year or more (Cornils and Jareborg, p. 38). For the great majority of offenders, noncustodial penalties are regarded as sufficient. Most frequently, they receive fines (which can be adjusted to the offender’s income through use of the day-fine system) or probation or a combination of both. New alternatives include community service and (since 1998) house arrest with electronic surveillance, which is regarded as a special form of executing a sentence of imprisonment.
Efforts at Assimilation and Unification of European Law
The process of European unification, which started after World War II and reached new dimensions after the end of the political partition of the continent in the 1990s, has extended to criminal law, though not as extensively as to private law.
The Council of Europe, of which almost all European states are members, has played an important role in setting common standards for criminal justice and in simplifying cooperation in transnational prosecutions. The most important European instrument in this area is the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which has been signed and ratified by all member states of the Council of Europe. The Convention guarantees citizens a number of important basic rights, several pertaining specifically to the criminal process and—like the prohibition of torture and cruel punishment in art. 3 ECHR—to criminal sanctioning. The European Court of Human Rights in Strasbourg is the guardian of human rights under the Convention, and any citizen can, after exhausting the legal remedies of domestic law, bring a complaint against the state that has allegedly violated one of the rights guaranteed by the Convention. The decisions of the court have had considerable influence on the laws of the member states (Bengoetxea and Jung). The Council of Europe has also been the source of many recommendations on criminal policy and of several conventions on cooperation in the prosecution of offenders and the execution of sentences.
The European Union has until the end of the twentieth century not been given a clear competence for criminal legislation. The 1997 version of the European Community Treaty does provide for the Council to prescribe sanctions for violations of the Union’s economic interests (EC treaty art. 280 sec. 4), but the application of penal law is left to the member states (see Deutscher). It is nevertheless obvious that the European Union is moving toward an assimilation and perhaps even unification of some parts of the criminal law, especially those relevant to economic and environmental issues central to the European unification movement. There exists a draft code for European economic criminal law (Delmas-Marty and Vervaele), and some authors have even suggested that a European Model Penal Code should be drafted to speed up the unification process (Sieber). Although it seems unlikely that a unitary European law might in the near future supersede national criminal codes, criminal law reform in Europe will probably be more and more a matter for continental rather than national policymaking.
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