“THEORIES OF PUNISHMENT” Submittedby:ASIFZAMIRRollNo: 532802nd Year, LL.M (3 Year Course)Subject: Criminology & CriminalJustice AdministrationUnder the Guidance of Ms Shweta GagnejaFaculty of Law, University of Delhi CONTENTS 1. INTRODUCTION 2. THEORIESOF PUNISHMENT · DeterrenceTheory· RetributionTheory· PreventiveTheory· ReformativeTheory 3. CONCLUSION INTRODUCTIoN Crimen omnia ex se nata vitiat- Crime vitiates everything, which springs from it. Crescente malitia crescere debet etpoena – Punishment is ought to be increased as malice/viceincreases. Anoffence may become a crime as a result of combined effect of myriad social forces& therefore what exactly & exclusively are the forces which haveresulted in endangering the safety, stability or comfort among individuals inthe society is difficult to fathom. A crime may, therefore be an act of disobedienceto such a law forbidding it, but then disobedience of all laws is not crime.
Thismeans that a wrong would mean something more than mere defiance to a law; itmeans an act which is both prohibited by law & revolting to the moral attitudeof the society. A crime of yesterday may become a virtue of tomorrow & soalso a virtue of yesterday may become a crime tomorrow. This causes a’difficulty’ in the ultimate analysis of the definition of crime as it keepschanging with the will of the masses. Black’slaw defines punishment as “Any pain, penalty, suffering, or confinement inflictedupon a person by the authority of the law & the judgment & sentence ofa court, for some crime or offense committed by him, or for his omission of aduty enjoined by law.” Thestage of punishment is the final process of the criminal jurisprudence system. oncea person is accused for some crime the first & foremost tenet of criminallaw comes into play i.e.
‘a person is considered innocent until proved guilty’.Then the law takes it course & the evidence requires a st of proofto be beyond reasonable doubt whilst establishing the guilt of the accused viatrial. once the court connects the dots & comes to a conclusion based onthe relevancy & admissibility of the proofs available, it decides thequantum of punishment in proportion to the gravity of the offence so committed.However,the fact that the punishment ought to increase with respect to the vice, in modernphenomenon means that such punishment must make the person committing itrealise that it has caused irreparable harm to someone & he must also wantto compensate for his offence by being a better human being & this feelingmust be quintessential while increasing the punishment. Therefore, the thrust ofpunishment ought to be reformative & rehabilitative. Thus as per ProfessorWechsler the purpose of criminal law is to express a formal social condemnationof forbidden conduct, buttressed by sanctions calculated to prevent it. THEORIES OFPUNISHMENT Inthe midst of transformation in the societal organization of the populace, ithas been witnessed that diverse theories of punishment had a far-reaching impacton the society & that during the course of development they have undergonetremendous changes since the early inception period till the post modern contemporaryperiod & the critical issuess relating to them. Punishmenthowever has four major philosophical theories namely:(i) Deterrence Theory(ii) Retribution Theory(iii) Preventive Theory(iv)ReformativeTheory This term paper aims at illustration of the progress& expansion of the theories of punishment.
The foremost purpose of thispaper is to examine the multiple punishment theories & shed light on themerits & demerits of every theory. (I) DETERRENCE PUNISHMENT THEoRY one of theprimitive techniques of punishment believed that if a strict punishment wasinflicted on the offender, it would not only deter him from repeating thatcrime but also set an example for others to follow. It is assumed that those whocommit a crime derive a certain psychological satisfaction or a sense of enjoymentfrom that act of crime, rigorous punishment is inflicted to neutralize this proclivityof the criminal mind. Humans very much like to seize opportunities forfulfilling their intentions, but despise when they face threats for the same. J.
Bentham, as the main originator of this theory, states:”Generalprevention ought to be the chief end of punishment, as it is its realjustification. If we could consider an offence which has been committed as anisolated fact, the like of which would never recur, punishment would beuseless. It would be only adding one evil to another.
But when we consider thatan unpunished crime leaves the path of crime open not only to the samedelinquent, but also to all those who may have the same motives & opportunitiesfor entering upon it, we perceive that the punishment inflicted on theindividual becomes a source of security to all. That punishment, which, consideredin itself, appeared base & repugnant to all generous sentiments, iselevated to the first rank of benefits, when it is regarded not as an act ofwrath or of vengeance against a guilty or unfortunate individual who has givenway to mischievous inclinations, but as an indispensable sacrifice to the commonsafety.”1″Inearlier days a criminal act was considered to be due to the influence of someevil 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 tothe 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 wasthe idea that punishment would also provide an opportunity for reform.
“Theframers of this Deterrent Theory believe that punishment primarily acts asdeterrence & its purpose is to demonstrate its detrimental effects. The offencesare primarily committed as a consequence of clash between the legitimateinterests of society at large & unlawful interests of the wrong-doer. Thistheory of deterrent punishment demonstrates that the offender receives theleast benefit from committing the crime. In this regard, John Locke observed “Bymaking crime an ill-bargain to the offender, it sends a message to world atlarge that punishment of crime is way more costly than the pleasure inachieving an end.
“1Thescheme underneath deterrent punishment is to avert commission of crime by meansof imposition of severe correctional sentence on the criminal. The State machineryby imposition of heavy sentences deters its citizens from carry out criminalacts through fear-psychosis. The rigorous penal provisions are made to petrify to the actual offender & other prospective ones.
Despite all these efforts this theorystill suffers from certain lacunae. The theory of deterrence becomes toothless whiledealing with hard-boiled criminals due to their increased resistance to thepain; the brutal punishment or even the heavy penalties provided turn out to beunproductive. The derision of this theory can be best observed when habitualcriminals seek or commit a new crime to return back to the prison as they takepleasure in their captivity more than their freedom.Deterrenceis proved effective & workable with certain defects. Can fear be a factor to discourage crime? Whether punishment as adeterrence works or not? The efficacy of deterrent form of punishment can beadduced from its application in Saudi Arabia; this system is applicable here inall its severity.
For instance in case of theft the limb of the offender ismutilated. It is also reported that crimes are minimal in Saudi, people leavetheir houses & shops unattended without a lock. However, all this cannot beattributed to deterrence form of punishment as there several other factors viz.Economic Security, Religious Injunctions, etc. & more so the purpose ofcriminal law is wider than merely providing deterrence.Itis often criticised as the theory of deterrent punishment falls short of attainingthe requisite result. A hardened criminal becomes habituated to theruthlessness of the punishment, & deterrence which was created by suchharsh punishment does not always stop him from committing a similar crime.
Moreover,it also fails to affect an ordinary criminal, as very often, a crime is committedin a moment of passion. If the crime is pre-concerted then the offender goes onto commit the crime, knowing fully-well about the consequences arising from hisact & still performs the act because he cannot help but do it, the effect ofdeterrence fails.According to the proponents of this theory,punishment is meant to thwart the person concerned & other persons from committing,similar offences. These people support the retention of capital punishment this theory in support of their contention. Their argument is thatcapital punishment by its very nature cannot have either a reformative value orbe a retributive necessity, its only value, if at all, is by way of deterrence.1John Locke: Second Treatise of Civil Government:CHAP.
II “of the State of Nature” ref. Sec. 12.
1 Jeremy Bentham: The Rationale of Punishment. Book I GeneralPrinciples, Chapter III – “of the Ends of Punishment”