THEORIES or a sense of enjoyment from

THEORIES OF
PUNISHMENT

 

In
the midst of transformation in the societal organization of the populace, it
has been witnessed that diverse theories of punishment had a far-reaching impact
on the society & that during the course of development they have undergone
tremendous changes since the early inception period till the post modern contemporary
period & the critical issuess relating to them.

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Punishment
however has four major philosophical theories namely:

(i)   
Deterrence Theory

(ii) 
Retribution Theory

(iii)                   
Preventive Theory

(iv)Reformative
Theory

 This term paper aims at illustration of the progress
& expansion of the theories of punishment. The foremost purpose of this
paper is to examine the multiple punishment theories & shed light on the
merits & demerits of every theory.

 

 

 

(I) DETERRENCE PUNISHMENT THEoRY

 

one of the
primitive techniques of punishment believed that if a strict punishment was
inflicted on the offender, it would not only deter him from repeating that
crime but also set an example for others to follow. It is assumed that those who
commit a crime derive a certain psychological satisfaction or a sense of enjoyment
from that act of crime, rigorous punishment is inflicted to neutralize this proclivity
of the criminal mind. Humans very much like to seize opportunities for
fulfilling their intentions, but despise when they face threats for the same.

J.
Bentham, as the main originator of this theory, states:

“General
prevention ought to be the chief end of punishment, as it is its real
justification. If we could consider an offence which has been committed as an
isolated fact, the like of which would never recur, punishment would be
useless. It would be only adding one evil to another. But when we consider that
an unpunished crime leaves the path of crime open not only to the same
delinquent, but also to all those who may have the same motives & opportunities
for entering upon it, we perceive that the punishment inflicted on the
individual becomes a source of security to all. That punishment, which, considered
in itself, appeared base & repugnant to all generous sentiments, is
elevated to the first rank of benefits, when it is regarded not as an act of
wrath or of vengeance against a guilty or unfortunate individual who has given
way to mischievous inclinations, but as an indispensable sacrifice to the common
safety.”1

`           The term “Deter” means to abstain &
avert others from doing an act. The main objective this theory is to deter
(prevent) the criminal repeating the same crime in future or other prospective
criminals from committing the crime in future. Punishment serves as an admonition
to the offender not to reiterate & moreover acts as a message to other
nefarious elements in the society as to the effect that what can be the consequences
of committing a crime. It leads to deterrence if punishment is administered with
uniformity, certainty, celerity & rigorousness.
But being aware that punishment is a wicked method, Bentham states, “If the
evil of punishment exceeds the evil of the offence, the punishment will be unprofitable;
he will have purchased exemption from one evil at the expense of another.”2

“In
earlier days a criminal act was considered to be due to the influence of some
evil spirit on the offender for which he was unwillingly was made to do that wrong.
Thus to correct that offender the society retorted to severe deterrent policies
& forms of the government as this wrongful act was take as an challenge to
the God & the religion. The basic idea of deterrence is to deter both offenders
& others from committing a similar offence. But also in Bentham’s theory was
the idea that punishment would also provide an opportunity for reform.”

The
framers of this Deterrent Theory believe that punishment primarily acts as
deterrence & its purpose is to demonstrate its detrimental effects. The offences
are primarily committed as a consequence of clash between the legitimate
interests of society at large & unlawful interests of the wrong-doer. This
theory of deterrent punishment demonstrates that the offender receives the
least benefit from committing the crime. In this regard, John Locke observed “By
making crime an ill-bargain to the offender, it sends a message to world at
large that punishment of crime is way more costly than the pleasure in
achieving an end.”3

The
scheme underneath deterrent punishment is to avert commission of crime by means
of imposition of severe correctional sentence on the criminal. The State machinery
by imposition of heavy sentences deters its citizens from carry out criminal
acts through fear-psychosis. The rigorous penal provisions are made to petrify &
warn to the actual offender & other prospective ones.

Despite all these efforts this theory
still suffers from certain lacunae. The theory of deterrence becomes toothless while
dealing with hard-boiled criminals due to their increased resistance to the
pain; the brutal punishment or even the heavy penalties provided turn out to be
unproductive. The derision of this theory can be best observed when habitual
criminals seek or commit a new crime to return back to the prison as they take
pleasure in their captivity more than their freedom.

Deterrence
is proved effective & workable with certain defects. Can fear be a factor to discourage crime? Whether punishment as a
deterrence works or not? The efficacy of deterrent form of punishment can be
adduced from its application in Saudi Arabia; this system is applicable here in
all its severity. For instance in case of theft the limb of the offender is
mutilated. It is also reported that crimes are minimal in Saudi, people leave
their houses & shops unattended without a lock. However, all this cannot be
attributed to deterrence form of punishment as there several other factors viz.
Economic Security, Religious Injunctions, etc. & more so the purpose of
criminal law is wider than merely providing deterrence.

It
is often criticised as the theory of deterrent punishment falls short of attaining
the requisite result. A toughened wrong doer never gets uninspired by the
ruthlessness of the punishment, & the fear of sentence which was created by
such harsh punishment does not always stop him from committing a similar crime.
Moreover, the theory also fails if any criminal commits a crime without being affected
by the consequences of punishment for his crime.

 

(II) RETRIBUTION THEORY

 

 

Retribution
means to give in return one of the archaic forms of Punishment stems from Theory
of Retribution. Retribution means in simple words ; ‘an eye for an eye’ or ‘limb
for a limb or ‘tooth for tooth’. The state mechanism exercises monopoly over
physical violence and inflicts, on behalf of the victim or his family, private vengeance
on the offender. In this course of administration of justice, state imposes
equivalent reprimand in place of private individuals.

Under
this theory, the offender is subjected to similar amount of pain which he caused
to the injured party. Reformation and Social well being takes a back seat and
most apt purpose of retribution is private revenge.

This
theory believes in “Let the punishment fit the crime”. The peaceful balance of
the society is disturbed by unlawful behaviour, & retribution helps to
reinstate the equilibrium. Supporting faction of retributive theory
believe in just deserts, which define justice in terms of equality,
fairness & proportionality. Retribution is a backward?looking
theory of punishment. The retributive theory focuses on the crime itself as the
reason for imposing punishment. The retributive theory looks in past rather
than present & at the transgression as the basis for sentencing.

The moral basis for retribution
differs from situation to situation. It is that many retributionists believe
that punishment should be warranted as an outline of vengeance & the
offender undergoes the similar treatment which he made the victim endure. This
primitive theory succinctly finds its place in Old Testament of Holy Bible:
“When a man causes a disfigurement in his neighbour, it shall be done to
him, fracture for fracture, eye for eye, tooth for tooth;
just as he has injured a man, so it shall be inflicted on him.”4 In the
Muslim Criminal Law, as well, a retributive type of punishment, which is till today
prevalent in several Muslim Nations across the globe, is called ‘QISAS’ or
‘KISA’.

As per the theorists, retribution
is significant as it goes on to balance the interests of the society. The
punishment inflicted on the offender is justified as it protects the legitimate
rights of society at large. The law regulates the behaviour of the wrongdoer by
infliction of punishment. By infliction of punishment the offender is made to
pay the debt which he owes to the society & then return back to the society
free of stigma & guilt.

Retribution
Theory is most harsh & stringent theory of punishment as it supposes to end
the criminal along with the crime. The idea of revenge & vengeance takes
the centre stage under this theory instead of social security & welfare.
There is an element of solace to the victims & their families when the offender
is inflicted with punishment in proportion to his criminal actions. The just
rationale for keeping the criminal behind the bar & under horrid conditions
would be a source of vengeful pleasure to the victim.

Philosopher
J. M. Finnis favours the Retribution theory and states that this theory provides
equilibrium of justice in the allocation of rewards & punishments by
restraining the will of the offenders. The supporters of this theory believe
that deliberation for reformation of the wrongdoer under social security may
serve a minimal purpose of the punishment.

Sir
Walter Moberly argues that punishment is a form of appropriate due which the
criminal deserves. In his words “Punishment serves to express & to
satisfy the righteous indignation which a healthy community treats as
transgression. As such it is an end in itself.” The utility theory has a
futuristic outlook, it is concerned with the utility cost of sentence imposed instead
of the committal of crime, which cannot be changed. Retribution, in contrast, looks
into the past and tries to settle the score between the victim and the offender.

Theorist Kant,
Immanuel stated in his “Metaphysics
of Morals, §49 E.”, that courts can only prescribe a retribution type of sentence.
Kant in one of his writings states:

“Judicial
punishment can never be used merely as a means to promote some other good for
the criminal himself or civil society, but instead it must in all cases be imposed
on him only on the ground that he has committed a crime; for a human being can
never be manipulated merely as a means to the purposes of someone else. He must
first of all be found to be deserving of punishment before any consideration is
given of the utility of this punishment for himself or his fellow
citizens.”5

Revenge
is an immediate and adequate necessity to vindicate the victim of the crime as
per Kant. Retributive punishment is considered to be the “Natural Justification”,
an end in itself for the crime, in the sense that society at large considers that
it is just & innate to punish the bad individual & compensate the good
one.

As
per the critics like Jeremy Bentham “Retribution is like adding one evil to another,
punishment which was base & repugnant, or as an act of wrath or vengeance on
the offender.” Consequently, no matter how much retributionists consider it to
be a divine form of punishment one must observe the brutality involved in it.

The
conclusion to be derived from this theory is strongly related to penitence of offender
which is brought about by infliction of punishment. However, in contemporary times,
the importance of retribution cannot be completely ruled out as it goes on to
impact the psyche of various offenders especially first time offenders, but the
very pith & substance of retribution i.e. revenge or punishment given to
the offender is unacceptable in a modern enlightened society. Retribution theory
of punishment is subjected to criticism by contemporary criminologists & penologists;
apart from a few Arab Nations this form of punishment is becoming redundant in
the present world. & as the famous quote of Mahatma Gandhi goes ‘an eye for
an eye would turn the whole world blind’.

1 Jeremy Bentham: The Rationale of Punishment. Book I General
Principles, Chapter III – “of the Ends of Punishment”

2 Ibid

3
John Locke: Second Treatise of Civil Government:
CHAP. II “of the State of Nature” ref. Sec. 12.

4 Holy Bible: Leviticus 24:19 & 2o

5 “Martin, Jacqueline (2oo5). The English Legal System (4th ed.), p.
174. London: Hodder Arnold”

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