Penal - Teoría

Segundo Ciclo de Grupos de Estudio: Teoría y Metodología Jurídica—Teoría de la Pena

Comenzando este jueves, 12 de febrero, celebraremos una nueva series de Grupos de Estudio en la Escuela de Derecho de la UPR. En estas sesiones discutiremos ensayos de temas diversos, de extensión moderada, seleccionados para estimular la reflexión intelectual en la comunidad académica.

Este ciclo tendrá como eje la Teoría de la Pena y sus sesiones serán dirigidas por el profesor Oscar Miranda-MillerEl trabajo a discutirse en cada sesión se describe a continuación y se acompaña su enlace en internet.

Primera Sesión: El retributivismo

Jueves 12 de febrero de 2015

Salón de la Facultad

12 pm – 1 pm

MICHAEL MOORE, Closet Retributivism, en PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 83 (1997), disponible en
Retributivism as a theory of punishment has enjoyed some resurgence among the legal theorists of the past thirty years—in marked contrast to the theory’s earlier decline throughout most of this century, when it was often regarded as a remnant of our barbarous past. This chapter is designed to persuade those who have not worked through any theoretical arguments in favour of retributivism how they themselves might be retributivists—closet retributivists, perhaps, but retributivists nonetheless. By “retributivist” I refer to one who believes that the justification for punishing a criminal is simply that the criminal deserves to be punished. What I mean by “closet” retributivism is a retributive theory held by those who have not thought through a theory of punishment, but who show themselves to be retributivists in the judgements they make and the reasons for which they make them. By and large I do not in this chapter attempt to show that such persons should be retributivists; only to show that they are.


Segunda Sesión: Las sanciones alternativas

Martes 3 de marzo de 2015


12 pm – 1 pm

Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 592 (1996), disponible en
The singularity of American criminal punishments has been widely lamented. Imprisonment is harsh and degrading for offenders and extraordinarily expensive for society. Nor is there any evidence that imprisonment is more effective than its rivals in deterring various crimes. For these reasons, theorists of widely divergent orientations–from economics-minded conservatives to reform-minded civil libertarians–are united in their support for alternative sanctions.
The problem is that there is no political constituency for such reform. If anything, the public’s commitment to imprisonment has intensified in step with the theorists’ disaffection with it. In the last decade, prison sentences have been both dramatically lengthened for many offenses and extended to others that have traditionally been punished only with fines and probation.
. . . The political unacceptability of alternative sanctions, I will argue, reflects their inadequacy along the expressive dimension of punishment. The public rejects the alternatives not because they perceive that these punishments won’t work or aren’t severe enough, but because they fail to express condemnation as dramatically and unequivocally as imprisonment.


Tercera Sesión: El hacer justicia controlando el crimen

Jueves 9 de abril de 2015

Salón de la Facultad

12 pm – 1 pm

Paul H. Robinson, The Ongoing Revolution in Punishment Theory: Doing Justice as Controlling Crime, 42 ARIZ. ST. L. J., 1089 (2010-2011), disponible en
You probably remember from your first-year criminal law class the age- old tension between the retributivists who want to punish offenders because they deserve it, they see deserved punishment as a value in itself, and the utilitarians (or instrumentalists), who believe that punishment must have some more practical justification, such as avoiding future crime, perhaps through deterrence, incapacitation of the dangerous, or rehabilitation. The dispute between these two groups is classically thought to be irresolvable. The two are simply using different currencies and think different things to be important.
One of the most exciting developments in current punishment theory suggests that these two positions may not be entirely irresolvable, at least in a sense. You all know the American Law Institute and the Model Penal Code that it promulgated in 1962. Almost three-quarters of the states have since codified their criminal law in ways modeled after that code. Last year, for the first time in forty-six years, the Model Penal Code was amended to change the section setting out the purposes of the code, its provisions, and how those provisions are to be interpreted. And much of what I will talk about today is the story, in intellectual terms, of how that change in perspective came about.

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