5. Institutional Redesign Proposals for the Preparation of Criminal Policy by the Government. The Focus on Ex Ante Evaluations

For a qualitative detailed analysis of criminal law reforms since 1996 up until 2011, see Díez Ripollés (2013b, c, p. 4) from which he concludes that “[…] one of the qualities that best characterizes the relentless criminal legislative events over the last 16 years is the increasingly accentuated tendency towards the expansion and hardening of the Spanish criminal system”.

I am assuming as a fact that revocable life imprisonment will be finally incorporated in the reform of the Criminal Code that was under debate in the Senate at the time of writing these lines.

In relation to the limitations of political, civil and social rights, unrelated or only slightly so, with the crime that was committed, see an analysis of the situation in the USA and the European Nordic countries in Díez Ripollés (2014), p. 5.

Although it is not something completely new, the lobbying recently led by the Criminal Policy Studies Group does appear to me to be of special intensity. In relation to the reform of the Criminal Code put before the Spanish Parliament in September 2013, this Group has articulated a combined strategy of presence in the media, meetings with parliamentary groups, appearances at the Justice Committee of the Congress of Deputies [Spanish Lower Chamber] (muy bien esto), preparation of documents as well as the organization of simultaneous events at various universities reading a manifesto and explaining its point of view on the reform. See as an example, the news item “Juristas contra el Código Penal [Jurists against the Criminal Code]” (http://​cadenaser.​com/​ser/​2015/​03/​04/​tribunales/​1425425154_​088827.​html), last visited 22 March 2015.

See the report of the Commission for The Study And Creation Of A National Agency For The Evaluation Of Public Policy (p. 21). Available at: http://​www.​aeval.​es/​export/​sites/​aeval/​comun/​pdf/​agencia/​Informe_​comision_​expertos_​esp.​pdf.

Ibidem, p. 24.

The work of Medina Ariza is filled with concrete references to significant shortcomings in the evaluation of different crime prevention models, an especially serious situation in Spain.

See the analysis of this sociological process prior to placing social problems on the public agenda in Díez Ripollés (2003), pp. 20–49; and in Ruiz Seisdedos and Ortega Pérez (2005), p. 127 f.

See for a quantitative and comparative analysis of the proportion of legislative initiatives from government among the norms finally approved since 1989 up until 2008 in Becerra Muñoz (2013), pp. 436–441.

And even recommendable, taking account of the serious consequences that the balance of parliamentary majorities may have in systems such as the United States. In that country, following the 2014 midterm elections, the Republican Party controlled the House of Representatives and the Democratic Party, the Federal Government. Governability was therefore very difficult since President Obama held the power to veto parliamentary initiatives and the House of Representatives can overturn legislative proposals from the Government. This situation does not however apply to Spain where national elections are single events, the results of which return a parliamentary majority that chooses the President.

The present configuration of the Spanish Ministry of Justice contrasts with the general pattern in other western democracies in which bodies with specific duties in criminal matters exist. These are units that in various ways combine two fields of knowledge: criminal matters expertise on one side and specific skills on legislative technique on the other. All of this is lacking in Spain. For a more detailed comparative analysis, see Becerra Muñoz (2013), pp. 356–360.

For a quantitative analysis of the participation of the Spanish Ministry of Justice in legislative drafts on criminal matters from 2004 to 2010, see Becerra Muñoz (2013), pp. 529–531.

See the webpage of the Office of Policy and Legislation at: http://​www.​justice.​gov/​criminal/​about/​opl.​html. Last accessed 22 March 2015.

Such recurring nature of policies is an unquestioned idea in Political Science. See Quade (1989), p. 74.

For all, see Brandariz García (2014), pp. 99–104. “Civil servants may design security policies that operate, above all, at a communicative level (…) the fundamental objective of which is to mitigate indignation and collective fear, as means of restoring credibility in institutional capacity to control crime”.

On both concepts, see Ruiz Seisdedos and Ortega Pérez (2005), p. 120 f.

An example of such pressures is the frequent reference to international commitments. See, on this, “Código Penal: ¿dónde están los crímenes más graves?”, El País newspaper, 20/03/2010, where the president of Amnesty International Spain criticized the Criminal Code reform that began in 2009 because of certain “omissions” in matters contemplated in such norms as the Rome Statute of the International Criminal Court, the Convention Against Torture and the UN International Convention for the Protection of All Persons from Enforced Disappearance.

In an opposite way, see Brandariz García (2014, p. 115), who argues that “the new Criminal Policy purpose is the efficient management of criminality, seeking the—most economically possible—minimization of its effects”. In my opinion, the author reflects in this argument the situation in societies that are not the Spanish. I think we could still benefit from an actuarial approach in a Criminal Policy drafted intuitively by people without expert knowledge. His argument warns, however, of the excesses of this perspective which, I insist, is still far from being a danger to the Spanish situation.

And all of this in an economic impact report of two pages in a reform that affects roughly 25 % of the existing Criminal Code. In the same sense, see Rodríguez Ferrández (2013), p. 32. This author offers an interesting and careful analysis of the different reports that were annexed to the bill that was finally passed in Jun 22nd 2010.

As Redondo Illescas and Garrido Genovés (2013, p. 126) assert, “nowadays there is a lot of criminological knowledge that could have practical implications, but such knowledge is very scarcely used (…) in the preparation of criminal reforms”.

For an overview of information sources for the study of criminality, see Redondo Illescas and Garrido Genovés (2013), p. 179 ff.

For example, sponsoring particular or periodic projects, or promoting agreements with universities.

Let us remember that, as public policy analysis literature claims, the decision of doing nothing should be an alternative taken into account, either because the situation is not serious enough for Criminal Policy measures, or because other forms of intervention outside of the criminal context might alleviate the problem sufficiently, etc. (see Mondragón Ruiz de Lezana 2005, p. 134).

Criticising an exclusively top-down approach, see Birkland (2001), p. 181 and Meny and Thoenig (1992), p. 161.

On this second model, see Ballart and Ramió (2000), p. 520.

For a complete explanation of the organization chart, see Becerra Muñoz (2013), p. 549 ff.

Using a similar terminology, Krieger (2001, p. 372 ff.).

About theory of contingencies and organizations, see Lucas Marín and García Ruiz (2002), p. 172; Ballart and Ramió (1993), p. 47.

Think, for example, of a reform of the working conditions of prison staff.

For example, the role of the media in Criminal Policy is beyond discussion and shows the obsolescence of such traditional view. See Becerra Muñoz (2013), pp. 94–101; Brandariz García (2014), p. 92 ff.

For reasons of space, I am leaving the discussion of the General Codification Committee out of this paper, a body that has an important specific role in all of this new dynamic. In my proposal, I suggest its attachment to the Ministry of the Presidency and its policy analysis to be focused on a medium to long-term view. See the comparative analysis on this matter and the proposals arising from it in Becerra Muñoz (2013), p. 378 ff., 541 ff.

The Kansas City Preventive Patrol Experiment constitutes a classic evaluation of police action, conducted at the start of the 70s of the Twentieth Century (Kelling et al. 1974). See, likewise, references to the problem oriented police and situational prevention models as areas in which evaluation of results has been crucial for the development of the models from their beginnings (Maxfield 2001, p. 4).

See a more careful justification of it in Rebolloso et al. (2008), p. 50. The original model proposed by those authors is found in Rebolloso Pacheco et al. (2003).

See, for example, the illustration in AEVAL (2010), p. 48 in which the regulatory impact assessment is placed among ex-ante evaluations, together with the valuation of problems, needs, diagnosis and design. See an analysis of the situation in France and the United Kingdom in Becerra Muñoz (2013), p. 399 f.

Certainly, the programme does not exist yet at this early stage. In that sense, Fernández-Ballesteros (2001), p. 51; and, partially, AEVAL (2010), p. 91. See a discussion on this point in Vedung (1997), p. 24 ff., who also places himself among those who do not consider this type of evaluation (in fact all ex ante evaluations) proper evaluation activities.

In the same sense, among others, Alvira Martín (1991), p. 37; Rebolloso Pacheco et al. (2008), p. 56 ff.

In the words of AEVAL: “Ex-ante evaluation is the ideal of a culture that has successfully introduced the evaluation in the analysis of public policies with a holistic sense from the start of the planning process and not only at the end, when the programme or the policy is bearing its fruit”. AEVAL (2010), p. 88.

Santamaría Pastor (2001), p. 1402. See a deeper analysis of the introductory parts of a criminal law and how they should be considered in Becerra Muñoz (2013), p. 386 ff.

With regard to the rest of the documentation, if there were any, that the Ministry of Justice could manage, the following words of Díez Ripollés are useful in relation to the Criminal Code reform sent for approval at the start of 2015: “during many months there was no way of knowing who, in the Ministry of Justice, had drafted the bill. And when you called the director general or an advisor they responded that they could not say. Some of those who we know that have participated continue saying that have not. That says a lot of a reform: the very people who drafted it do not wish to say that they were involved in it”. Interview with El Diario published 24 February 2015. Available at: http://​www.​eldiario.​es/​andalucia/​Jose-Luis-Ripolles-Derecho-Penal_​0_​360114085.​html. Last accessed March 2015.

See, also, a sceptical analysis with the fruits (confirmed by the earlier news item) of the legislative impact report approved in 2009 in Becerra Muñoz (2013), p. 413 ff.

Vedung made an interesting classification of such instruments. In his opinion, there are only three types: the stick (the regulations), the carrot (the economic means) and the sermon (the information). He argued that governments, either oblige us to do something or they reward us materially for doing so or they tell us that we should do so.

I am referring to the Real Decreto (RD) 1083/2009, of July the 3rd, prepared by the Ministry of the Presidency, which regulates the preparation of a “regulatory impact analysis report” as well as the methodological guide for the preparation of the regulatory impact analysis report, prepared by the Ministries of the Presidency, Economy and the Treasury, Territorial Policy and Equality, and with the surprising absence of the Ministry of Justice, traditionally in charge of the preparation of practically all the legal norms of national competency. It is specifically art. 1.2. of the aforementioned RD which makes it possible for the Criminal Policy Division to be the central organ in this ex-ante evaluation.

The author refers to principles such as harmfulness, legal certainty, responsibility for the act, humanity of punishments, etc.; see also Gascón Abellán (2001), p. 46.

Gascón Abellán (2001, p. 45) uses this terminology in the legal environment. On systematicity, see Atienza Rodríguez (1997), p. 32.

In the legal context, Ruíz Sanz (2006), p. 30 does so; while in policy evaluation speak of coherence, for example, Osuna and Márquez (2000), p. 31.

On standards-based evaluation, see Stake (2006), p. 47, 107 f.

Target population can also involve a community setting, an organisation, a procedure, a service, an institutional setting, or a combination of various criteria.

Through the so-called participative evaluation. See Stake 2006, p. 271 ff.

These actors with an interest in the policy are also called stakeholders and their participation in policy creation and evaluation is generally considered essential in the field of evaluation. Among others, see Rebolloso Pacheco et al. (2008), p. 79 f.

See Sánchez-Ostiz (2012), for an interesting and recent development of three criminal principles intended to serve as a shining example in the creation of Criminal Policy: the principle of security in social life, of legality and respect for dignity.

Stake speaks, in addition, of other benefits of this participative evaluation: detection of a larger number of appropriate study questions and development of skills in the participants for their daily activities and the resolution of new problems as they emerge (Stake 2006, p. 271).

First and foremost, article 88 of the Spanish Constitution and article 22 of the Law of the Government, 50/1997, of November 27th.

An analysis of the preceptive processes that can be speeded up by the procedure that I propose may be seen in Becerra Muñoz (2013), p. 575 ff. The sole documentation needed to culminate the pre-legislative will be those related to the impact studies. In reality, the terminology “impact studies”, as used in the pre-legislative phase, makes reference to any analysis that is done from an ex-ante or prospective perspective; in other words, everything covered here could come under such a heading. In spite of the enormous popularity acquired by this terminology in recent years, it is only marginally attended within the scope of ex-ante evaluation, that is the reason why they have not received any attention in this article. Evidently, where the impact analysis acquires all of its potential is in the evaluation after the introduction of the policy.

Despite the confusion attached to the division between the aforementioned stages, I think that the intervention of the General Committee of Secretaries and Sub-secretaries of State marks a clear distinction point. From that moment, the proposal should be relatively well outlined and the role of the Division will be more of a secondary one. See, on this point, Becerra Muñoz (2013), p. 574.

See Díez Ripollés, La reforma penal y el sueño de la razón, Newspaper El País (2013a). Available at http://​elpais.​com/​elpais/​2013/​04/​10/​opinion/​1365599490_​607254.​html. Last accessed March 2015.