November 25, 2020

Theories of Punishment

INTRODUCTION

Fear of acts which disrupt social equilibrium of a society has lead to the imposition of punishments. These punishments are imposed by people who have an established power to enforce a desirable conduct. There are always certain questions which come along with the infliction of punishment. The most common of these questions is whether such infliction of punishment is morally justifiable or not? The underlying principle of criminal justice, however, is that voluntary violation of an established and affirmed legal norm calls for the expiation of such act by the offender.[1] The administration of criminal justice is only restricted to those rules of enforcement which are considered as binding on each and every individual, i.e. laws.

There are various kinds of punishments that are imposed for different crimes. These can range from fines to serving a certain amount of time in prison, imprisonment for life, or the death penalty. The gravity of the offence determines the gravity of the punishment to be inflicted. To understand the different kinds of punishment, it is important that the theories of punishment are studied. These theories are as follows:

1. DETERRENT THEORY

Deterrence is the use of punishment to prevent the offender from repeating their offense and to deter potential offenders from committing crimes of a kind similar to that for which the punishment is now inflicted. It demonstrates to other potential offenders what will happen to them if they follow the wrongdoer’s example.[2]

It was first advocated by Plato: “No one punishes a wrongdoer on account of his wrongdoing unless one takes unreasoning vengeance like a wild beast. But he who undertakes to punish with reason does not avenge himself for the past offense since he cannot make what was done as though it never came to pass; he looks to the future and aims at preventing that particular person and others who see him punished from doing wrong again.”

Certainty of punishment and detection of offence deters a normal mind but this deterrence is not found in the mind of a criminal. Criminal acts without thinking of the consequence. But deterrence fails in crimes of emotion or passion and in those motivated by greed, impulse, or fear. Deterrence is of no effect when the criminal seeks punishment from a sense of guilt.[3] Detention is more so an advertisement of punishment to instill fear in potential wrongdoers.

2. RETRIBUTIVE THEORY

The essence of the retributive theory of punishment has been well described by Professor Hart: “This older conception of punishment is sharply distinguished from mere social hygiene : it does not make primary, as modern thought does, the reduction of crime or the protection of society from the criminal; instead it makes primary the meting out to a responsible wrongdoer of his just deserts.”

The instinctive action of any victim towards the criminal would be to retaliate. The demand of infliction of punishment is obvious and justified. Long ago, the responsibility to deal with the criminal and to inflict punishment upon him was that of the victim. However, with the development of society, this notion was left behind, and the victim was forced to relinquish their right to punish their wrongdoer. Retribution was exacted by attributing to the community collectively the resentment .and, anger, of the wronged individual. The feelings of the injured party were subordinated to society’s interest of punishing the offender.[4] One can say that the punishment as a form of the society’s collective interest is just as immoral as the crime itself. But it is vital to keep in mind that this imposition is not violative of any legislative provision.

3. REFORMATIVE THEORY

Both deterrence and retributive theories are examples of classical and non-classical philosophies. Reformative theory is based on psychology and sociology of crime. It aims at returning the officer to society in possession of new sets of morals and values and with a sense to contribute to the society.

Rehabilitation is motivated by a belief in the worth and dignity of every person and a willingness of society to expend its time and energy to reclaim him for his own sake, not merely to keep him from again harming society.[5] Reformative theory focuses on an individualistic approach. It focuses on the change of a criminal and a belief in re-educating and reforming of the criminals.

4. PREVENTIVE THEORY

This theory, unlike the other, aims to prevent the crime rather than to avenge it. It looks at punishments from a more humane perspective and rests on the fact that the need of a punishment for a crime arises out of mere social needs. Thus, while sending the criminals to the prisons the society is in turn making an effort to prevent the offender from committing any other crime in the future. This protects the society from any anti-social elements.[6]

The essence of the preventive theory is simply that the offender should be detained in custody for a long period of time, in order to prevent him from committing further offences during that period. The length of the period of detention is calculated not on the basis of the culpability of the offender in respect of the offence for which he has been sentenced, but with regard primarily to the need to protect the public.

End Notes

[1] Egon Bittner and Anthony M. Platt, The Meaning of Punishment, 2 ISSUES IN CRIMINOLOGY 79, 81 (1966).

[2] Joel Meyer, Reflections on Some Theories of Punishment, 59 J. CRIM. L. CRIMINOLOGY 595, 596 (1968).

[3] Leopold, What is Wrong with the Prison System?, 45 NEB. L. REV. 36 (1966).

[4] Supra note 2 at 595.

[5] Ibid at 597.

[6] Shaswata Dutta, Theories of Punishment – A Socio-Legal View, LEGAL SERVICES INDIA, http://www.legalserviceindia.com/articles/pun_theo.htm


Author Details: Sidra Javed

The views of the author are personal only. (if any)

Leave a Reply

Your email address will not be published. Required fields are marked *