THE PENAL SANCTION, JUSTIFICATIONS AND LEGITIMACY - ON DRUG LEGISLATION IN NORWAY

It is not unreasonable to say that in Norway punishment has been the p ublic authorities' most important means in the battle against the evil of drugs. In no other area of criminal law has there been a correspon ding sharpening of the penalty in modern times. Three types of grounds , which are different in principle, have been given when the level of punishment has been raised. First, reference has been made to consider ations of general deterrence. Secondly, reference has been made to con siderations of specific deterrence. Thirdly, it has been argued that t he sentence imposed should be proportionate to the blameworthiness of the offence. The question that is raised and discussed in the article is the extent to which argumentation with reference to general deterre nce, specific deterrence and blameworthiness can be said to be tenable . To test the generally deterrent effect, we have analysed the connect ion between the variation in the maximum sentence and the number of pe rsons charged in the period from 1976 up to and including 1994. In the course of this period the level of punishment was raised on two occas ions. The estimating procedure was based on time series analysis devel oped by Box and Jenkins. To test the specifically deterrent effect, we used as a basis data from criminal records. By means of Tobit regress ion we measured both the effect of the severity of the sentence - oper ationalized by the index serving of sentence - and the specifically de terrent effect of inmates being transferred to treatment as part of th e time to be served. We find no documentary evidence of any generally deterrent effect. Our analysis indicates that both the negative specif ically deterrent effect - the deterrent effect of punishment on the pe rson being punished - and the positive specifically deterrent effect - resocialization through therapeutic intervention - also seem to be du bious. Argumentation with reference to proportionality cannot be shown to be empirically false in the same way as general and specific deter rence can. There are no objective criteria for the determination of bl ameworthiness. One may, however, ask the question whether the legislat ors in their eagerness to express moral condemnation overlooked the fa ct that when it comes to a considerable proportion of the players in t he drug market, it can be difficult to draw a clear dividing line betw een sellers and misusers. The problem with the proportionality argumen t is that very many drug offenders are both criminals and victims.