Rethinking the political economy of punishment at the EU level: an assessment of the alternatives to incarceration in the field of economic crime

• In Event: The Future of EU Criminal Policy

Abstract

The most recent scholarship on EU legislative powers in criminal matters has explored the limits to such competence by looking at the interests that ought to be protected through criminalisation. In contrast, way less attention has been paid to the more specific question of what type of sanctions might be needed to counter the forms of wrongdoing against which the EU is entitled to react (as per Article 83 TFEU). This paper builds on penological tenets and, more specifically, on the paradigm of the ‘political economy of punishment’. It submits that market-based EU freedoms have somewhat contributed to cast imprisonment as the default option within EU criminal law. The pivotal role played by incarceration in the context of EU criminal policy must be scrutinised in light of a triad of principles: first, the overuse of incarceration may be detrimental for the effet utile of EU legislation (effectiveness); second, a blanket use of imprisonment as a sentence may turn into a disproportionate reaction both in itself (cardinal proportionality) and comparatively (ordinal proportionality); third, prison overuse is amenable to upend the person-centred approach the EU has espoused by placing fundamental rights at the core of its constitutional architecture (human dignity). The paper analyses the carceral ideology of the EU by looking at some policy areas where the ‘political economy’ framework applies most consequentially: first, we turn to the directive on the protection of financial interests of the Union; second, attention is paid to the proposal for a new directive on corruption. In both cases, what strikes is the blind confidence in the performative and expressive function of custodial sentences. Instead, the normative benchmarks considered above could have led to a differentiation in the choice of the types of sentences applicable, notably by promoting alternatives to prison while upholding the reprobative component of punishment.

Author

• Adriano Martufi, University of Pavia