Selektiva straffskärpningar – minskad likabehandling? – En analys av straffskärpningar utifrån teoretiska, rättsliga och etiska principer

Sammanfattning: Gang crime has lately been a high-priority issue, both by the legislature and among the public. As a result of this, the government decided on the 11th of June 2020 to set up an inquiry that would introduce new measures against crimes in criminal networks (SOU 2021:68). Among their proposals is a new penalty enhancement provision, whose purpose is to enable significantly harsher punishment for crimes committed in certain criminal networks. At the same time, several of the criminal justice reforms that have been taken, as well as SOU 2021:68, have received some criticism. The criticism has mainly been focused on the problematic fact that the political rhetoric is largely based on a dichotomization in terms of "us" and "them". Parts of the criticism that have been made must also be seen with essential principles and theories that Swedish criminal law is based on. In addition to these, the legislation contains some provisions that set certain requirements on how criminal law must be designed by the legislator. What these have in common is that the provisions aim to maintain values concerning that all are equal before the law and that everybody must be treated equally before the law and have the right to non-discrimination. At the same time, several of the rights have their roots in ethical considerations, that is unwritten rules, which means that their deeper meaning is depending on the ruling power. Situations may therefore arise, where the public’s opinion of norms may come in conflict with fundamental ethical values. A jurisprudential method has been applied in the essay, where the purpose has been to analyze the outer limits of increased penalties with the starting point in the inquiry’s proposal of a new penalty enhancement provision. A material justice perspective has been applied to analyze how the proposal can be understood based on certain aspects of rule of law aspects certainty and constitution likewise, and whether the current system can be considered to assure protection against discretionary criminal law. Section 4 presents a study of legal awareness. The study provides some evidence that the general legal awareness, which reflects the public view on crime in the media who often have basic information, wanted harsher punishments and consequently, that the current punishments are too weak. However, the results of the study provided some evidence that the inclination to punish generally decreases the more well-informed (about the actual crime committed and its circumstances) the public is. Section 6 states that the current order is unsatisfactory when it comes to the protection against arbitrary regulatory penalties and hence poses a challenge to fundamental ethical values.