Theories of Punishment All Over the World

 

Sandipta Padhee

Hidayatullah National Law University, Near Abhanpur, Uperwara Post, Raipur

 

 

INTRODUCTION:

Punishment according to dictionary- involves the infliction of pain or forfeiture, it is infliction of penalty. Chastisement or castigation by the judicial arm of the state. If the sole purpose behind punishment is to cause physical pain to the wrongdoer, it serves little purpose. However, if punishment is such as leads him to realize the gravity of the offence committed by him, and to repent at once for it, it may be said to have achieved its desired effect. As salmon observes, the ends of criminal justice are four in number, and in respect of the purpose so served by it, punishment may be distinguished as

1. Deterrents:

Deter' means to abstain from doing at act. The main objective of this theory is to deter (prevent) crimes. It serves a warning to the offender not to repeat the crime in the future and also to other evil-minded persons in the society. This theory is a workable one even though it has a few defects.

2. Retributive Theory

Retribute means to give in return. The objective of the theory is to make the offender realize the suffering or the pain. In the Mohammedan Criminal Law, this type of punishment is called 'QISAS' or 'KISA'. Majority or Jurists, Criminologists, Penologists and Sociologists do not support this theory as they feel it is brutal and barbaric.

3. Preventive Theory

The idea behind this theory is to keep the offender away from the society. The offenders are punished with death, imprisonment of life, transportation of life etc. Some Jurists criticize this theory as it may be done by reforming the behavior of criminals.

4. Reformative Theory

The objective is to reform the behavior of the criminals. The idea behind this theory is that no one is born as a Criminal. The criminal is a product of the social, economic and environmental conditions. It is believed that if the criminals are educated and trained, they can be made competant to behave well in the society. The Reformative theory is proved to be successful in cases of young offenders.

5. Expiatory Theory

Jurists who support this theory believes that if the offender expiates or repents, he must be forgiven.

 

Theories in U.K

In recent years much debate in the UK has surrounded the issue of paedophiles. It has been regarded that convicted paedophiles will, while not necessarily facing permanent imprisonment, should necessarily face some regime of permanent surveillance to counter the risk of re-offending. Thus the Crime and Disorder Act 1998 enables police forces to apply for sex offender orders prohibiting a convicted paedophile offender from certain activities and locations.

 


Further, Multi-Agency Public Protection Panels, made up of police and probation and other agencies such as social services and housing manage the risk posed by violent and sexual offenders released from custody. Paedophiles who have committed an offence since 1997, or were in custody at that time, are required to register their name and address with the police for a specified period of time under the Sex Offenders Act 1997.  [1]

 

The 1991 act claimed to be founded on the notion of just deserts, in reality UK policy was quite far removed from the original liberal deserts philosophy of the 1970s. The 1980s had witnessed a growing emphasis on a punitive law and-order ideology, and consequently the 1991 act also ensured that violent or sexual offenders would go to prison for long periods, which in some cases might be greater than their offense might warrant. [2]This practice of “incapacitating” particular offenders was completely inconsistent with a true justice model.

 

Theories in U.S.A.

The U.S. Sentencing Commission, federal judges, and Congress should consider the purpose of the federal criminal justice system when considering mandatory minimum sentences. While Congress has the authority to establish mandatory minimum sentencing laws, the U.S. Sentencing Commission and Congress need to consider whether some of these laws conflict with the U.S. Sentencing Guidelines and the doctrine of just deserts.[3]

 

In general, there are four justifications for criminal sanctions: deterrence, incapacitation, rehabilitation, and just deserts.

 

Changes in U.S. politics have caused shifts in the theoretical purposes of sentencing. During the heyday of liberalism in the 1960s and 1970s, the judicial and executive branches (for example, parole boards) wielded power in sentencing.

 

Legislators designed sentencing laws with rehabilitation in mind. More recently, during the politically conservative 1980s and 1990s, legislators seized power over sentencing, and a combination of theories—deterrence, retribution, and incapacitation—have influenced sentencing laws.[4]\

 

Rehabilitation:

“Let the punishment fit the criminal” expresses the rehabilitative ethic. Rehabilitation calls for changing the individual lawbreaker through correctional interventions, such as drugtreatment programs. [5]

 

Deterrence:

There has been much debate over whether deterrence works. Proponents assert that punishment deters if it is administered with celerity (swiftness), certainty, and severity. A distinction needs to be drawn between general versus specific deterrence. General deterrence uses the person sentenced for a crime as an example to induce the public to refrain from criminal conduct, while specific deterrence punishes an offender to dissuade that offender from committing crimes in the future.. Some crimes, such as crimes of passion and crimes committed while under the influence of drugs, can't be deterred because their perpetrators don't rationally weigh the benefits versus the costs (which include punishment) before breaking the law. Finally, research evidence suggests that the deterrent effect of punishment is weak. [6]

 

Incapacitation:

A popular reason for punishment is that it gets criminals off the streets and protects the public. The idea is to remove an offender from society, making it physically impossible (or at least very difficult) for him or her to commit further crimes against the public while serving a sentence. Incapacitation works as long as the offenders remain locked up.[7] The problem is that it is very expensive. Incapacitation carries high costs not only in terms of building and operating prisons, but also in terms of disrupting families when family members are locked up.[8]

 

Retribution:

“Let the punishment fit the crime” captures the essence of retribution. Proponents advocate just deserts, which defines justice in terms of fairness and proportionality. Retributivists aim to dispense punishment according to an offender's moral blameworthiness (as measured by the severity of crimes of which the offender was convicted). Ideally, the harshness of punishments should be proportionate to the seriousness of crimes. In reality, it is difficult to match punishments and crimes, since there is no way to objectively calibrate the moral depravity of particular crimes and/or the painfulness of specific punishments. Retribution is a backwardlooking theory of punishment. It looks to the past to determine what to do in the present. [9]

 

Theories in India:

The Indian criminal system is mostly a mixture of many theories of punishment. There were times when countries followed only one theory of punishment but, now, all countries and mostly India to be precise follows a mix up of many theories of punishment. India follows deterrent, preventive and reformative theories. [10]

 

Deterrent Theory:

To deter means to discourage, restrict etc. As the name suggests, the theory profess punishment which deter criminals to do further crimes or stops the criminal minded persons from committing crimes. The idea behind this theory is that punishment should be of such a nature which causes fear of it in other person who in consequence of such fear of punishment deter from committing crimes.[11] This type of punishment favors in inflicting severe and harder punishment on the guilt.

Ex: the fine imposed by traffic police etc.

 

Preventive Theory:

Punishment is, preventive or disabling. Its primary and general purpose being to deter by fear, its secondary and special purpose is wherever possible and expedient, to prevent a repetition by wrongdoer by the disablement of the offender. [12]The most effective mode of disablement is the death penalty, which in practice, in time of peace, is confined to the crime of murder, though it is legally possible for treason and certain form of piracy and arson. [13]

 

A similar secondary purpose exists in sub penalties as imprisonment and forfeiture of office, the suspension of driving licenses and in the old penalty of exile.[14] The aim of this theory is not to repeat the crime the crime but this theory takes no note of criminal. It prefers to disable the wrong-doer from committing any more crime but it ignores one of the basic object of the criminal law, i.e. to reform the criminal.

 

Reformative Theory:

Punishment in the fourth place is reformative. Offences are committed through the influence of mating or by a change of character. The curative or medicinal function is practically limited to two particular species of penalty, namely, imprisonment (where it pertains to the ideal rather than to the actual) and probation.[15]

 

The new science of criminality would go far towards identifying crime with disease, and would willingly deliver many classes of criminals out of the hands of the men of law into the hands of men of medicine.[16] Imprisonment and probation, indeed, are the only important instruments available for the purpose of a purely reformative system. It is the most controverted theory. [17]

 

Conclusion:

Punishment is the sanction imposed on persons who commit crimes. It is sometimes considered an end in itself but nowadays it is usually considered a means to an end with the end being to protect society from the incidence of criminal behaviour. Different jurists have put forth a number of theories which deal with punishment and each one of them has a different focus. Theories of punishment express a state’s ideologies towards humanity. It denotes the prioritisation of justice and humanity. It makes way for the whole idea and aura of a state.  It is thus different in all states yet similar in many ways.

 

Reference:

1.      http://www.schreiben10.com/referate/Recht/2/The-main-theories-of-sentencing-linked-to-the-different-types-of-sentences-reon.php

2.      http://www.sagepub.com/hanserintro/study/materials/reference/ref3.1.pdf

3.      http://www.heritage.org/research/testimony/theories-of-punishment-and-mandatory-minimum-sentences

4.      http://www.cliffsnotes.com/more-subjects/criminal-justice/sentencing/theories-of-punishment

5.      http://www.cliffsnotes.com/more-subjects/criminal-justice/sentencing/theories-of-punishment

6.      http://www.lawnotes.in/Theories_of_Punishments

7.      http://www.heritage.org/research/testimony/theories-of-punishment-and-mandatory-minimum-sentences

8.      http://indialegal.blogspot.in/2008/04/sanctions-and-theories-of-punishment.html

9.      http://www.bunker8.pwp.blueyonder.co.uk/cjs/26906.htm

10.    http://www.ucl.ac.uk/~uctytho/PunishmentMixedTheories.html

11.    http://www.bunker8.pwp.blueyonder.co.uk/cjs/26906.htm

12.    a&gfe_rd=cr&ei=eXhCU62uDcTM8gfnjYHoDQ

13.    http://plato.stanford.edu/entries/punishment/#2

14.    http://www.kton.demon.co.uk/punishment.htm

15.    http://www.ucl.ac.uk/~uctytho/PunishmentMixedTheories.html

16.    http://www.bunker8.pwp.blueyonder.co.uk/cjs/26906.htm

17.    http://www.lawnotes.in/Theories_of_Punishments

 

Received on 18.07.2014

Modified on 25.07.2014

Accepted on 30.07.2014

© A&V Publication all right reserved

Research J. Humanities and Social Sciences. 5(2): April-June, 2014, 163-165