Lika fall men olika straff? - En straffteoretisk jämförelse mellan påföljdsbestämningen vid flerfaldig brottslighet och återfall

Sammanfattning: A ”penal reduction” in the case of multiple criminality and more severe sanctions due to a relapse into crime both regulates the case when a person has committed multiple crimes. The difference between the two regulations is that in the case of ”penal reductions”, the crimes are covered during the same trial, while in the case of a relapse, the convict has first been sentenced during one trial and after the full execution of that punishment commits another crime that is being processed during a new trial. The purpose of this essay is to illuminate the complexity of problems within achieving a coherent penal system that is unified from a perspective of penal theory at the same time as it is perceived as convincingly and equitable in the public’s sense of justice. The analysis aims at problematizing the divergency between the regulations and to discuss the background, effects and possible solutions with these. The essay is based on legislative text, legislative history and judicial doctrine and an analytical method has been used to achieve the purpose. The essay contains a report of the regulations, and their background based on penal theories and other legitimising grounds that the legislator has referred to at the legislative procedure of the regulations. The analyzing part of the essay consists in a comparison between the regulations, to investigate whether the tension between them is justified and conclusively discuss the adequacy in the differences that exists and what these differences implies. The conclusions that has been made is that the regulations with a ”penal reduction” in the case of multiple criminality and more severe sanctions due to a relapse into crime could regulate identical situations with the only difference being when the crimes have been sentenced. Even so the penalty applied could significantly differ. For example, the circumstance that the crimes are severe is a reason to increase the severity of the penalty at a relapse, but if it is multiple criminality that are being processed during the same trial the ”penal reduction” seem to be larger at more severe crimes to avoid reaching the maximum of the penalty scale. The differences between the regulations are explained due to that they are built on different penal theories. ”Penal reductions” are justified mostly by the importance of upholding the relative proportionality and the principle of humanity. More severe sanctions due to a relapse into crime are on the other hand built on the theory of prevention and the legislator has justified it by referring to the public’s sense of justice, that it has a long history in the Swedish legal system and that similar regulations are found in other countries. The differences between the regulations are unsatisfactory and there is a need for a reform. The many public investigations that have been launched to investigate the possibility to limit the ”penal reductions” impact and to penalize recidivist more severe could be a sign that the principles of proportionality and humanity, that for a long time have been prevalent have started to get dated. It is possible that a new penal theory has emerged that are more considerate of the actual damage and guilt that the crimes have constituted and that the criminal lifestyle of a criminal should have a bigger impact on the determination of a penalty.