Deterrent effect of Punishment
Some of the major questions which are engaging the attention of modern penologists are whether the traditional forms of punishment should remain the exclusive or primary weapons in restraining criminal behaviour or should be supplemented and even replaced by a much more flexible or diversified combination of measures of treatment of a reformative, curative and protective nature. And if so, to which categories of offenders should these improvised measures be applicable and how should their choice in particular cases be determined? And finally, how could the reintegration of offenders into society be placed so as to efface the penal stigma and to cut off the supply of potential recidivists at its source?
Punishment the offenders is a primary function of all civil States. The incidence of crime and its retribution has always been an unending fascination for human mind. However, during the last two hundred years, the practice of punishment and public opinion concerning it have been profoundly modified due to the rapidly changing social values and sentiments of the people. The crucial problem today is whether a criminal is to be regarded by society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refractory child to be disciplines? Or should he be regarded as none of these things but simply be punished to show to others that anti-social conduct does not finally pay.
It is in this perspective that the problem of crime, criminal and punishment is engaging the attention of criminologist and penologists all around the world. A ‘crime’ has been defined by Salmond as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual. Thus “a murderer injures primarily p particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim’s family.” Those who commit such acts, if convicted, are punished by the State. It is, therefore, evident that the object of criminal justice is to protect the society against criminals by punishing them under the existing penal law. Thus punishment can be used as a method of reducing the incidence of criminal behaviour either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. It is this principle which underlies the doctrines concerning the desirability and objectives of punishment. Theories of punishment, therefore, contain generally policies regarding handling of crime and criminals. There are four generally accepted theories of punishment, namely, deterrent, retributive, preventive and reformative. It must, however, be noted that these theories are not mutually exclusive and each of them plays an important role in dealing with potential offenders.
Assuming that man is justified in fixing the moral worth of his fellow; that he is justified in punishment for the purpose of making the offender suffer; and that these punishments according to the degree of severity will in some way pay for or make good the criminal act or protect or help society or prevent crime or even help the offender or someone else, what finally is the correct basis of fixing penalties?
No science, experience, or philosophy and very little humanity have ever been considered in fixing punishments. The ordinary penalties are first : fines, which generally penalize someone else more than the victim; these with the poor mean depriving families and friends of sorely needed money, and the direct and indirect consequence3s are sometimes small and sometimes very great. Theses can be readily imagined. If instead of fines a prison sentence is given, a sort of decimal system has been worked out by chance or laziness or symmetry of figures; certainly it has been done wholly regardless of science, for there is no chance to apply science when it comes to degrading men and taking away a portion of their lives. Generally ten days is the shortest. From this the court goes to twenty, then thirty, then sixty, then three months, then six months, then one year.
Why not eleven days? Why not twenty-four days? Why not forty days? Why not seventy days? Why not four months or five, or eight or nine or ten months? Is there no place between six months in jail and a year in jail? The bids at an auction or the flipping of pennies are exact sciences compared with the relation between crime and punishment and the process of arriving at the right penalty. If in the wisdom of the members of the legislature the crime calls for imprisonment in the penitentiary, then the ordinary sentences run one, two, five, ten fifteen, twenty, thirty years, and life, according to the hazard of the legislature, the whim of the court, the gamble of the jury, or the feeling and means of expression of the unthinking and pitiless crowd who awe courts and juries with their cries for vengeance.
Neither does punishment affect any two alike; the sensitive and proud may suffer more from a day in jail or even from conviction than another would suffer from a year. The various courts and juries of the different states fix different penalties. Even in the same state there is no sort of resemblance to the punishments generally given for similar crimes. Some jurisdictions, some juries and some courts will make these three or four times as severe as others for the same things. Some days the same judge will give a longer sentence than on other days. In this judges are like all of us. We have our days when we feel kindly and sympathetic toward all mankind. We have our days when we mistrust and dislike the world in general and many people in particular. Largely the weather influences those feelings. Therefore, the amount of time a person spends in prison may depend to a great extent on the condition of the weather at the time of conviction or when sentence is passed. The physical condition of judge or jury, and above all, their types of mind, is all-controlling. No two men have the same imagination: some are harsh and cruel; others kind and sympathetic; one can weigh wheat and corn and butter and sugar; one can measure water and molasses and gasoline. When one measures or weighs, one can speak with exactness regarding the thing involved. Justice and mercy and punishment cannot be measured or weighed; in fact there is even no starting point. The impossibility of it all makes many of the humane and wise doubt their right to pass judgment upon their fellow man. Society no doubt is bound by self-protection to resist certain acts and to restrain certain men, but it is in no way bound to p ass moral judgments.
Under any system based on a scientific treatment of crime, men would be taken care of as long as it was necessary to restrain them. It would be done in the best possible way for their own welfare. If they ever were adjudged competent to enter society again, then would be released when that time came. Neither under a right understanding, and a humane, scientific and honest administration, would it be necessary that places of confinement should be places of either degradation or misery. In fact the inmate might well be put where he could enjoy life more than he did before he was confined. It might and should be the case also that he could produce enough to amply take care of himself and provide for those who would naturally look to him for support, and perhaps make compensation for the injury he had caused to someone else.
It is obvious that this cannot be done until men have a different point of view toward crime. In the last hundred years much has been done to make prisons better and to make more tolerable the life of the inmates. This has been accomplished by men who looked on criminals as being at least to a certain extent like other men.
Above all, as things are now, the prison inmate has no chance to learn to conform unless hope is constantly kept before him. He should be like the convalescing invalid able from time to time to note his gradual progress in the ability to make the adjustments that are necessary to social beings. No patient in a hospital could be cured if he were constantly told that he could not get well and should not get well. His imagination should be enlarged by every means that science can bring to the teaching of man.
First of all there must be individual treatment. No one would think of putting hundreds or thousands of the ill or insane into a pen, giving those numbers, leaving them so that no capable person knows their names, their histories, their families, their possibilities, their strength or their weaknesses. Every intelligent person must know that this would inevitably lead to misery and death. The treatment of men in prison is a much more difficult problem than the care of the physically diseased. It requires knowledge of biology, of psychology, of hygiene, of teaching and of life; it needs infinite patience and sympathy; it needs thorough acquaintance and constant attention. It is a harder task than the one that confronts the physician in the hospital, because the material is poorer, the make is more defective, and the process of cure or development much slower and no so easily seen.
No person is entirely without the sympathetic, idealistic and altruistic impulses, which after all are the mainsprings of social adaptation. Probably these innate feelings can be found in prisoners as generally as in other men. It is the lack of these qualities that often keeps men outside the jail. They “ get by “ where kindly and impulsive men fail. A large part of the crime, especially of the young, comes from the desire to do something for someone else and from the ease with which persons are led or yield to solicitation.
The criminal has always been met by coldness and hatred that have made him lost his finer feelings, have blunted his sensibilities, and have taught him to regard all others as his enemies and not his friends. The ideal society is one where the individuals move harmoniously in their various orbits without outside control. The governing power of a perfect order in its last analysis must be within the individual. A perfect system probably will never come. Men are too imperfect, too weak, too ignorant and too selfish to accomplish it. Still, if we wish to go toward perfection, there is no other road.
One of the favourite occupations of legislatures is changing punishments in obedience to the clamour of the public. In times of ordinary tranquillity a penalty may even be modified or reduced, but let the newspapers awaken public opinion to crime by the judicious use of headlines and a hot campaign, let the members feel that there is a popular clamour and that votes may be won or lost, and the legislature responds. This is generally done without reference to the experience of the world, without regard to the nature of man, with no thought of the victim, and with no clear conception of how the legislation will really affect the public.
The demand is constantly made that such crimes as kidnapping, train robbing, rape and robbery should be punished with death, or at least with imprisonment for life. Irrespective of its effect on the criminal, what is the effect on the victim of the criminal? A man is held up on a lonely highway; the robber does not intend to kill. His face is exposed. If the penalty for robbery is life imprisonment, he kills to avoid detection. If it is death, he kills even before he robs. The same thing operates in rape, in burglary, and in other crimes. In all property crimes not only is no killing intended or wanted, but precautions are taken to guard against killing. All laws to make drastic penalties should really be entitled: “An Act to Promote Murder”.
Making penalties too drastic destroys the effect meant to be produced. Public clamour does not last forever. Men grow tired of keeping their tongues wagging on the same subject all the time. A state of frenzy is abnormal and when it subsides the temperature not only goes back to normal, but as far below as it has been above. When the fury has spent itself jurors regain some of their human feeling and refuse to convict. History has proved this over and over again, and still politicians always seek to ride into power on the crest of the wave; when the wave moves back, they can easily go back with it. Even if the severe punishments should be continued without abatement, these soon lost their power to terrify. Communities grow accustomed to hangings; they get used to life sentences and long imprisonments and the severity no longer serves to awe. The cruelty serves only as a mark of the civilization of the day. Some day, perhaps, a wiser and more humane world will marvel at our cruelty and ignorance, as we now marvel at the barbarity of the past.
The word is the abstract substantivation of the verb to punish, which is recorded in English since 1340, deriving from Old French puniss-, an extended form of the stem of punir "to punish," from Latin punire "inflict a penalty on, cause pain for some offense," earlier poenire, from poena "penalty, punishment of great loss" . Latin "punire" possibly was inspired by the phoenician way to execute by means of crucifixion. Therefore the carthagian crosses were called "signae poenae" - "signs of the phoenicians".
Colloquial use of to punish for "to inflict heavy damage or loss" is first recorded in 1801, originally in boxing; for punpishing as "hard-hitting" is from 1811.
In common usage, the word "punishment" might be described as "an authorized imposition of deprivations — of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens — because the person has been found guilty of some criminal violation, typically (though not invariably) involving harm to the innocent." (according to the Stanford Encyclopedia of Philosophy). Augustine confessions, every inordinate act carries its own punishment.
The most common applications are in legal and similarly 'regulated' contexts, being the infliction of some kind of pain or loss upon a person for a misdeed, i.e. for transgressing a law or command (including prohibitions) given by some authority (such as an educator, employer or supervisor, public or private official).
Introduced by B.F. Skinner, punishment has a more restrictive and technical definition. Along with reinforcement it belongs under the Operant Conditioning category. Operant Conditioning refers to learning with either punishment or reinforcement. It is also referred to as response-stimulus conditioning. In psychology, punishment is the reduction of a behavior via a stimulus which is applied ("positive punishment") or removed ("negative punishment"). Making an offending student lose recess or play privileges are examples of negative punishment, while extra chores or spanking are examples of positive punishment. The definition requires that punishment is only determined after the fact by the reduction in behavior; if the offending behavior of the subject does not decrease then it is not considered punishment. There is some conflation of punishment and aversives, though an aversive that does not increase behavior is not considered punishment.
Scope of application
Punishments are applied for various purposes, most generally, to encourage and enforce proper behavior as defined by society or family. Criminals are punished judicially, by fines, corporal punishment or custodial sentences such as prison; detainees risk further punishments for breaches of internal rules. Children, pupils and other trainees may be punished by their educators or instructors (mainly parents, guardians, or teachers, tutors and coaches) - see Child discipline.
Slaves, domestic and other servants used to be punishable by their masters. Employees can still be subject to a contractual form of fine or demotion. Most hierarchical organizations, such as military and police forces, or even churches, still apply quite rigid internal discipline, even with a judicial system of their own (court martial, canonical courts).
Punishment may also be applied on moral, especially religious, grounds, as in penance (which is voluntary) or imposed in a theocracy with a religious police (as in a strict Islamic state like Iran or under the Taliban) or (though not a true theocracy) by Inquisition.
Concept of Punishment
Before dealing with the theories of punishment, it would be pertinent to ex plain the concept of punishment. Sir Walter Moberly, while accepting the definition of punishment as given by Grotious, suggests that punishment presupposes that :-
1.What is inflicted is an ill, that is something unpleasant;
2.It is a sequel to some act which is disapproved by authority;
3.There is some correspondence between the punishment and the act which has evoked it;
4.Punishment is inflicted, that it is imposed by someone’s voluntary act;
5.Punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable for him and for his wrong doings.
Evolution of Punishment
Among primitive peoples the penal code was always short. Desire for property had not taken possession of their emotions. Their lives were simple, their adjustments few, and there was no call for an elaborate code of prohibited acts. Their punishments were generally simple, direct and severe: usually death or banishment which often meant death, sometimes maiming and branding, so that offender might serve as a constant warning to others.
Primitive peoples early asked questions about their origin and destiny. The unknown filled most of the experiences of their lives. The realm of the known was very small. They had no idea of law and system, of cause and effect. They early began evolving religious ideas. The manifestations of nature, the mystery of birth, the fear of death, the phenomena of dreams, the growth and harvesting of crops-all of these were beyond their understanding. They peopled the earth with gods to be propitiated and appeased. Everything was the act of a special providence. From early times religion and witchcraft furnished the chief subjects for the criminal code.
The penalties for the violation of the code were always severe, generally death, and by the most terrorizing ways. No other crime could be so great as to arouse the anger of the gods, and naturally no other conduct should demand so severe a penalty as calling down the wrath of the gods. This would fall not only upon the offending man, but upon the community of which he was a part. Even as man developed in knowledge and civilization, this sort of crime continued to furnish the greater proportion of victims and the most cruel punishments. Torture of the most fiendish sort was evoked to catch offenders and extort confessions. Difference of religious opinions was the worst crime. The inquisition became an established thing. Sometimes a nation was almost wiped out that heretics should be killed and heresies destroyed. The heretic was the one who did not accept the prevailing faith. The list of victims of punishment on account of religion, witchcraft, sorcery and kindred laws has in the past no doubt been larger than for any other charges.
This kind of laws always called out the greatest zeal in their enforcement. To the religious enthusiast nothing else was of equal importance. It involved not only the life of man on earth but his life through all eternity. Out statutes today are replete with such crimes, but the punishments have been lessened and, as a rule, communities will not enforce them. But laws against blasphemy, working on Sunday, and Sunday amusements of all sorts, are still on the books and enforced in some places. A large organization and an influential and aggressive part of the Christian Church are insisting that these laws shall be enforced to the limit and that still others shall be placed among the statutes of the several states.
The methods of inflicting the death penalty have been various, the favourite ways being burning, boiling in oil, boiling in water, breaking on the rack, smothering, beheading, crucifying, stoning, strangling and electrocuting. Until the middle of the last century they were carried out in the presence of the multitude so that all might be warned by the example.
The number of crimes for which death and bodily torture have been the punishment can scarcely be recorded and if they could it would be of no value. They would run into the hundreds and probably the thousands. A large part of these crimes are now obsolete. Doubtless more men have been executed for crimes they did not commit and could not commit than for any real wrong of which they were guilty.
Prisons came into fashion later than the death penalty, and as a form of punishment have gradually come to take the place of most death penalties. Prisons in the past have been loathsome places and not much better than death. Prisoners have been packed together so closely that life was almost impossible. To incarcerate victims in prisons have brought terrible punishment not only on the prisoners and their families, but indirectly on the state. No doubt through the years prisons have been gradually improved. Many of their terrors have been banished. People have come to believe that even a prisoner should have some consideration from the state. Penalties have likewise grown less severe and terms have been shortened, but this course has not been regular or constant; the public readily relaxes into hatred and vengeance, and it is easy to arouse these feelings in men, since they lie very close to the surface. A constant struggle has always been waged by the humane to make man more kindly, and yet probably his nature does not really change. A few months of frenzy may easily undo the work of years.
So long as men punish for the sake of punishment, there will be a disagreement between the advocates of long punishment and short punishment, hard punishment and light punishment. From the nature of things, there is no basis on which this can be determined. The only thing that throws any light on the question is experience, and men can always differ as to the lessons of experience. Neither do they remember experience when feelings are concerned.
Punishment can deter only on the ground of the fear that flows from it. Fear comes from things that are more or less unusual. Man has little abstract fear of a natural death; it is so unavoidable that it does not even figure in the ordinary affairs of life. Extreme punishments may grow so common that few give them any concern. They probably are so common now that the impression they make is not very great. Lighter and easier punishments would have the same psychological effect. In many cases a lenient punishment would also eliminate much of the hatred and bitterness against the world that are common to all inmates of prisons.
Relationship among Crime, Punishment and Theories
Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that one or other of the proposed justifications of punishments either logically include or logically excluded by definition.’ Punishment has the following features:
Ø It involves the deprivation of certain normally recognized rights, or other measures considered unpleasant
Ø It is consequence of an offence
Ø It is applied against the author of the offence
Ø It s applied by an organ of the system that made the act an offence
The kinds of punishment given are surely influenced by the kind of society one lives in. Though during ancient period of history punishment was more severe as fear was taken as the prime instrument in preventing crime. But with change in time and development of human mind the punishment theories have become more tolerant to these criminals. The stringent theories of punishment the modern society is seen loosing its hold on the criminals. The present scenario also witnesses the opposition of capital punishment as inhumane, though it was a major form of punishing the criminals earlier. But it may also be observed till recently the TALIBANS used quite a harsh method for suppression. The law says that it does not really punish the individual but punishes the guilty mind. As punishment generally is provided in Criminal Law it becomes imperative on our part to know what crime or an offence really is. Here the researcher would like to quote Salmond’s definition of crime: Crime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual. He further substantiates his point of view through the following illustration a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a mater of mere compensation between the murderer and the victim’s family.Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be used as a method of educing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive and Reformative.Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and 'theories of punishment’ (i.e. the justifications) will be used as a basis for considering divine punishment.Many a time this punishment has been termed as a mode of social protection. The affinity of punishment with many other measures involving deprivation by the state morally recognized rights is generally evident. The justifiability of these measures in particular cases may well be controversial, but it is hardly under fire. The attempt to give punishment the same justification for punishment as for other compulsory measures imposed by the state does not necessarily involve a particular standpoint on the issues of deterrence, reform or physical incapacitation. Obviously the justification in terms of protection commits us to holding that punishment may be effective in preventing social harms through one of these methods.As punishments generally punish the guilty mind it becomes very important on the part of the researcher to what crime really is. But it is quite difficult on the part of the researcher to say whether or not there must be any place for the traditional forms of punishment. In today’s world the major question that is raised by most of the penologist is that how far are present ‘humane’ methods of punishment like the reformative successful in their objective. It is observed that prisons have become a place for breeding criminals not as a place of reformation as it was meant to be.
It may be clearly said that the enactment of any law brings about two units in the society- the law-abiders and the law-breakers. It is purpose of these theories of punishment to by any means transform or change these law-breakers to the group of abiders. To understand the topic the researcher would like to bring about a valid relation between crime, punishment and the theories. For this purpose it is discussed as under:
Ø Crime and Punishment
Ø Theories of punishment
Crime And Punishment
Crime: A dictinery Meaning: n., & v.t. 1. Act (usu. grave offence) punishable by law; shameful act 2. charge with or convict of offence.
Punishment: A dictinery Meaning: n. Punishing or being punished; penalty inflicted on the offender;
Punish: A dictinery Meaning: 1. Cause to suffer for offence, chastise, inflict penalty on offender for his crime.
One can surely observe how closely are crime and punishment related. The researcher would in this chapter precisely like to stress on this point itself.
Crime is behaviour or action that is punishable by criminal law. A crime is a public, as opposed to a moral, wrong; it is an offence committed against (and hence punishable by) the state or the community at large. Many crimes are immoral, but not all actions considered immoral are illegal.
In different legal systems the forms of punishment may be different but it may be observed that all arise out of some action or omission. All these constitute all moral as well as legal wrongs such as murder, rape, littering, theft, trespass and many more. As crime is quite different in different geographical area it is quite evident that the forms of punishment would vary as it was mentioned earlier that punishment as well as crime are socially determined. A type of action may be a crime in one society but not in another. For example euthanasia ( mercy killing) is an offence in India, but in many European coutries such as Holland it is legalized. But there are certain offences which are recognized almost universally like murder and rape etc.
Jurists explain crime, as crime exists in every society which do and do not have laws, courts and the police. He asserts that all societies have crime, since all societies involve a differentiation between two kinds of actions, those that are allowed and those that are forbidden. He calls the latter type criminal.
Law is the string that binds society, and he who attempts to break the string is a danger to the society as a whole and dealt with sternly by the powerful arms of law. Punishment though most times confused with imprisonment is something much different from it. Punishment though most times confused only with sanctions may also be of moral nature like ostracism. Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and 'theories of punishment, (i.e. the justifications) will be used as a basis for considering divine punishment.
A complete definition will now be made in such a way as to include both legal and divine punishment. A.Flew first suggests that punishment must be an evil, an unpleasantness to the victim. Some of jurists object to the use of the word 'evil' in connection with punishment. They maintain that 'evil' carries too much moral flavour and also that it suggests positive suffering. They state: The world is a worse place the more evil there is in it and perhaps the more suffering. But it does not seem to me necessarily a worse place whenever men are deprived of something they would like to retain; and this is the essence of modern punishment. While deprivation may be a more appropriate description of modern punishment this does not necessarily exempt it from being an evil. Nor does the suggestion that 'evil' carries a moral flavour, for in fact the word punishment itself carries a moral flavour. (Like 'evil', punishment is not in itself a moral term but it is suggested that it usually occurs in an ethical context.) While we must eventually come to some conclusion as to whether punishment is an evil, it would be preferable at present to use, as does W. Moberly, the slightly more neutral term 'ill'. Both of these thinkers of punishment believe that the offender must be answerable for any wrong that he has done. K. Baier explains punishment as law-making, penalisation, finding guilty, pronouncing a sentence. In a legal context law-making is a necessary condition, but it is possible to commit a wrongdoing intentionally although no law has been made, in fact it is because certain acts are considered wrong that laws are made in the first place. What is important to note is that punishment is a conditional act and cannot be isolated from its total context.But Durkhaeim has a different approach to punishment altogether. He treats punishment as the reaction of the society against a crime.
According to him a if punishment be a proportionate response to the harm caused to the society then the extent of the punishment inflicted must be clearly sorted out. He also stressed on the point that punishment can never be calculated; it is an intensely emotional- sense of outrage- the desire to exact punishment. He says, It is not the specific nature or result of the offending action as such which matter, but he fact that the action transgresses widely shared ad strongly held sentiments, whatever these might be in any particular case. He explains that if punishment is a reaction of the society against the offenders then it is generally in the form of an outrage or anger thus rather being reparative or reformative becomes punitive. This approach of the society towards the criminals is what makes us treat them as outcasts and treated as an deviant from the social norms. This two-fold approach has been criticized severely by various penologists, as at one time there is the use of both reformative and retributive theories. Punishment and crime are very strange phenomena to deal with. It is only if the acts done are within the course of the provisions provided under the Code then any benefits take out of it is not questioned. But any action through which maybe the same benefit is gained still the person may be punished as because his action was not within the scope of the provisions. Also there are certain elements in the society who though do many immoral acts but as because any provisions or sanctions are not mentioned so that they can be punished they continue to do that act. One should not earn any benefits or satisfaction out of such acts. The legitimacy of any form of has always been criticized. Though there are many legal coercive measures but it is quite different from punishment. If the punishment were any retribution to an evil done then regardless of any consequence it would try to end that evil in itself. But if the objective of the punishment given is to prevent the crime from further occurrence then it would rather than using coercive methods it would be using persuasive measures and discourage the offender from committing that act in the future. Treating punishment as a conventional device for the expression of resentment, indignation, disappointment felt either by the sufferer and his family or the punishing authority as such J.Feinberg argues that certain kinds of severe treatment become symbolic of the of the attitudes and judgement of the society or community in the face of the wrongdoing, and constitute a stigma which castes shame and ignominy on the individual on whom the punishment is applied. The distinctiveness of the unpleasant measure could consist of the way of executing them.
Thus, summarizing the concept of punishment one can suggest that punishment includes the following areas :
Ø Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.
Ø It is a sequel of a wrongful act
Ø There must be some relationship between the punishment inflicted and the crime committed.
Ø The punishment is a form by which a criminal is made answerable to the society
Theories f Punishment:
With change in the social structure the society has witnessed various punishment theories and the radical changes that they have undergone from the traditional to the modern level and the crucial problems relating to them. Kenny wrote: "it cannot be said that the theories of criminal punishment current amongst our judges and legislators have assumed...."either a coherent or even a stable form. B.Malinowski believes all the legally effective institutions....are....means of cutting short an illegal or intolerable state of affairs, of restoring the equilibrium in the social life and of giving the vent to he feelings of oppression and injustice felt by the individuals.
The general view that the researcher finds is that the researcher gathers is that the theories of punishment being so vague are difficult to discuss as such. In the words of Sir John Salmond, “The ends of criminal justice are four in number, and in respect to the purposes served by the them punishment can be divided as:
Of these aspects the first is the essential and the all-important one, the others being merely accessory. Punishment before all things is deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.
The researcher in this chapter would like to discuss the various theories and explain the pros and cons of each theory. The researcher’s main aim in this chapter is to show the evolution of the theories as such.
One of the primitive methods of punishments believes in the fact that if severe punishments were inflicted on the offender would deter him form repeating that crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of the mind, punishment inflicts equal quantum of suffering on the offender so that it is no longer attractive for him to carry out such committal of crimes. Pleasure and pain are two physical feelings or sensation that nature has provided to mankind, to enable him to do certain things or to desist from certain things, or to undo wrong things previously done by him. It is like providing both a powerful engine and an equally powerful brake in the automobile. Impelled by taste and good appetite, which are feelings of pleasure a man over-eats. Gluttony and surfeit make him obese and he starts suffering disease. This causes pain. He consults a doctor and thereafter starts dieting . Thus the person before eating in the same way would think twice and may not at all take that food. In social life punishment introduces the element of 'pain' to correct the excess action of a person carried out by the impulse (pleasure) of his mind. We all like very much to seize opportunities, but abhor when we face threats. But in reality pain, threat or challenges actually strengthens and purifies a man and so an organization
J. Bentham, as the founder of this theory, states:
"General prevention ought to be the chief end of punishment as its real justification. If we could consider an offence, which has beeen, committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only 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 and opportunities for entering upon it, we perceive that punishment inflicted on the individual becomes a source of security for all. That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety."
Bentham's theory was based on a hedonistic conception of man and that man as such would be deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says,
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.
The basic idea of deterrence is to deter both offenders and others from committing a similar offence. But also in Bentham's theory was the idea that punishment would also provide an opportunity for reform.
"While a person goes on seeking pleasure, he also takes steps to avoid pain. This is a new system of political philosophy and ethics developed by Jerome Bentham and John Stuart Mill in the 19th century called Utilitarianism. It postulates human efforts towards "maximization of pleasure and maximum minimization of pain" as the goal. "The main ethical imperative of utilitarianism is: the greatest good for the largest number of people; or the greatest number of goods for the greatest number of people" The fear of consequent punishment at the hands of law should act as a check from committing crimes by people. The law violator not merely gets punishment, but he has to undergo an obnoxious process like arrest, production before a magistrate, trial in a criminal court etc. that bring about a social stigma to him as the accused. All these infuse a sense fear and pain and one thinks twice before venturing to commit a crime, unless he is a hardcore criminal, or one who has developed a habit for committing crimes. Deterrent theory believes in giving exemplary punishment through adequate penalty."
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 and forms of the government as this wrongful act was take as an challenge to the God and the religion.
But in spite of all these efforts there are some lacunae in this theory. This theory is unable to deter the activity of the hardcore criminals as the pain inflicted or even the penalties are ineffective. The most mockery of this theory can be seen when the criminals return to the prisons soon after their release, that is precisely because as this theory is based on certain restrictions, these criminals are not effected at all by these restrictions rather they tend to enjoy these restrictions more than they enjoy their freedom.
...An eye for an eye would turn the whole world blind- Mahatma Gandhi
The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the offender provides some kind solace to the victim or to the family members of the victim of the crime, who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. The only reason for keeping the offender in prison under unpleasant circumstances would be the vengeful pleasure of sufferer and his family. J.M.Finnis argues in favour of retributism by mentioning it as a balance of fairness in the distribution of advantages and disadvantages by restraining his will. Retributivists believe that considerations under social protection may serve a minimal purpose of the punishment. Traditional retributism relied on punishing the intrinsic value of the offence and thus resort to very harsh methods. This theory is based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely both these theories involve the exercise of control over the emotional instinctual forces that condition such actions. This includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive outbursts.
Sir Walter Moberly states that the punishment is deemed to give the men their dues. "Punishment serves to express and to and to satisfy the righteous indignation which a healthy community treats as transgression. As such it is an end in itself."
"The utilitarian theories are forward looking; they are concerned with the consequences of punishment rather than the wrong done, which, being in the past, cannot be altered. A retributive theory, on the other hand, sees the primary justification in the fact that an offence has been committed which deserves the punishment of the offender." As Kant argues in a famous passage:
"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."
"Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one. Punishment is an end in itself. Retribution could also be said to be the 'natural' justification" , in the sense that man thinks it quite natural and just that a bad person ought to be punished and a good person rewarded.
However 'natural' retribution might seem, it can also be seen as Bentham saw it, that is as adding one evil to another, base and repugnant, or as an act of wrath or vengeance. Therefore as we consider divine punishment we must bear in mind, as Rowell says,
The doctrine of hell was framed in terms of a retributive theory of punishment, the wicked receiving their just deserts, with no thought of the possible reformation of the offender. In so far as there was a deterrent element, it related to the sanction hell provided for ensuring moral conduct during a man's earthly life.
Thus the researcher concludes that this theory closely related to that of expiation as the pain inflicted compensates for the pleasure derived by the offender. Though not in anymore contention in the modern arena but its significance cannot be totally ruled out as fear still plays an important role in the minds of various first time offenders. But the researcher feels that the basis of this theory i.e. vengeance is not expected in a civilized society. This theory has been severely criticized by modern day penologists and is redundant in the present punishments.
Unlike the former theories, this theory aims to prevent the crime rather then avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements.
Fitchte in order to explain this in greater details puts forward the illustration, An owner of the land puts an notice that ‘trespassers’ would be prosecuted. He does not want an actual trespasser and to have the trouble and expense of setting the law in motion against him. He hopes that the threat would render any such action unnecessary; his aim is not to punish trespass but to prevent it. But if trespass still takes place he undertakes prosecution. Thus the instrument which he devised originally consist of a general warning and not any particular convictions
Thus it must be quite clear now by the illustration that the law aims at providing general threats but not convictions at the beginning itself. Even utilitarian such as Bentham have also supported this theory as it has been able to discourage the criminals from doing a wrong and that also without performing any severity on the criminals. The present day prisons are fallout of this theory. The preventive theory can be explained in the context of imprisonment as separating the criminals from the society and thus preventing any further crime by that offender and also by putting certain restrictions on the criminal it would prevent the criminal from committing any offence in the future. Supporters of this theory may also take Capital Punishment to be a part of this theory. A serious and diligent rehabilitation program would succeed in turning a high percentage of criminals away from a life of crime. There are, however, many reasons why rehabilitation programs are not commonly in effect in our prisons. Most politicians and a high proportion of the public do not believe in rehabilitation as a desirable goal. The idea of rehabilitation is considered mollycoddling. What they want is retribution, revenge, punishment and suffering.
Thus one an easily say that preventive theory though aiming at preventing the crime to happen in the future but it still has some aspects which are questioned by the penologists as it contains in its techniques which are quite harsh in nature. The major problem with these type of theories is that they make the criminal more violent rather than changing him to a better individual. The last theory of punishment being the most humane of all looks into this aspect.
But that is the beginning of a new story--the story of the gradual Renewal of a man, the story of his gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown life.
The author of the above excerpt in this concluding paragraph underlines the basic principle of the reformative theory. It emphasizes on the renewal of the criminal and the beginning of a new life for him.
The most recent and the most humane of all theories is based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes. Though it may be true that there has been a greater onset of crimes today than it was earlier, but it may also be argued that many of the criminals are also getting reformed and leading a law-abiding life all-together. Reformative techniques are much close to the deterrent techniques.
Reform in the deterrent sense implied that through being punished the offender recognized his guilt and wished to change. The formal and impressive condemnation by society involved in punishment was thought to be an important means of bring about that recognition. Similarly, others may be brought to awareness that crime is wrong through another's punishment and, as it were, 'reform' before they actually commit a crime. But, although this is indeed one aspect of rehabilitation, as a theory rehabilitation is more usually associated with treatment of the offender. A few think that all offenders are 'ill' and need to be 'cured' but the majority of criminologists see punishment as a means of educating the offender. This has been the ideal and therefore the most popular theory in recent years. However, there is reason to believe this theory is in decline and Lord Windlesham has noted that if public opinion affects penal policy, as he thinks it does, then there will be more interest shown in retribution in the future.
This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community. The reformation generally takes place either through probation or parole as measures for reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of hardened criminals this theory may not work with the effectiveness. In these cases come the importance of the deterrence theories and the retributive theories. Thus each of these four theories have their own pros and cons and each being important in it, none can be ignored as such.
The Effect of Punishment on Others
The ordinary man who hears of crime hates the criminal and wants him to suffer. He does not picture the malefactor as a man who, for some all-sufficient reason, has committed a dreadful act. Still less does he ask: “Has he a father or mother, a wife or children, brothers or sisters, and how are these affected by his deed?” No one can intelligently deal with the criminal without considering these. Practically no inmate of a prison stands alone. He is a member of a family or small social group, and inevitably the interests of these others are more or less closely bound up with his. If punishment is justified for its influence on society, these must be taken in to account with the other members of the social organization.
The criminal, it must be remembered, is almost always poor. He has a mother, brothers and sisters, wife or children, dependent for support to a large extent, upon his casual earnings. He is placed in jail or the penitentiary and the family must make new adjustments to life. The mother or wife may go to work at hard labour for a small return; the children may be taken out of school and sent to stores or factories, be condemned to lives of drudgery that will often lead to crime. The family may be broken up and scattered through institutions and the poorest shelters. A complete transformation for the worse almost always comes over the home. It is safe to say that at least three or four are closely touched by the misfortune of every one. These lives must be readjusted, and the chances are that the new adjustments will not be equal to the old, if for nothing else than because the conviction is a serious handicap in their struggles. Let anyone go to a city jail on a visiting day and see the old mothers, the stunned and weeping wives, the little children, down to babes in arms, who crowd around the corridors to get a look at the man behind the bars. To them at least he is a human being with feelings and affections, with wants and needs. All of these can recount his many good qualities which the world cannot see or know. Their first step is to borrow or to sell what they can to provide means for his defence. Everything else is cast aside. Day after day they visit the jail and the lawyer, contriving means to save liberty or life. When the trial comes, they watch through its maze in a dazed, bewildered way. They know that the man they love is not the one who is painted in the court room, and at least to them he is not. If he is convicted and goes to prison for a term of years, then month by month the faithful family goes to see him for an hour in the prison, visiting across the table in open view of guards and others as unfortunate as they. The family follows all sorts of advice and directions and seeks out many hopeless clews for men of influence and position who can unlock prison doors. The weeks run into months and the months into years, and still many of them keep up their hopeless vigil; some are driven to drudgery, some to crime, some to destruction for the man whom the state has punished that society may be improved. It is safe to say that the state ruins at least one other life for every victim of the prison.
No provision is made for the dependent families of the wretched man. Ruthlessly society sends the man to prison and sees the daughter leave school, a mere child, and go to work. What becomes of her it does not know or care? It seems not to know that she exists. The state sees the convict’s boy working at casual tasks and growing up on the streets, while his father is paying the penalty of his act. He may on this account follow his father to jail; it is not society’s concern.
Assuming that an offender must be confined for the protection of society, as some no doubt must be, still the effect on the family and how to prevent its destruction should be among the first concerns in the disposition of the case.
# Research Scholar, Department of Laws, Guru Nanak Dev University, Amritsar, Punjab
# Leon Radzinowicz : In Search of Criminology, p.4 Quoted from Dr.N.V.Paranjape, Criminology and Penology , Central Law Publications, Allahabad (13th Ed.) 2008, p.216
# Salmond : Jurisprudence (12th Ed.) p.92 Quoted from Dr.N.V.Paranjape, Criminology and Penology , Central Law Publications, Allahabad (13th Ed.) 2008, p.216
# Darrow Clarence , Crime : Its Cause And Treatment, Patterson Smith Publishing Corporation, 1972, New Jersey, p 150.
# http://en.wikipedia.org/wiki/Punishment retrieved on 15, Nov,2009.
# http://en.wikipedia.org/wiki/Punishment retrieved on 15, Nov,2009.
# http://en.wikipedia.org/wiki/Punishment retrieved on 15, Nov,2009.
# Paranjape N.V., Criminology And Penology, 13th Edition, Central Law Agency, Allahabad, 2008, p 217.
# Darrow Clarence , Crime : Its Cause And Treatment, Patterson Smith Publishing Corporation, 1972, New Jersey, p 161.
# http://www.legalserviceindia.com/articles/pun_theo.htm retrieved on 11 November 2009.
# Ostracism, social. Means exculsion from society or common privileges [ s.123(2)(a)(i),Representation of the Peoples Act (43 of 1951)]
# http://www.legalserviceindia.com/articles/pun_theo.htm retrieved on 11 November 2009.
# http://www.legalserviceindia.com/articles/pun_theo.htm retrieved on 11 November 2009.
# Darrow Clarence , Crime : Its Cause And Treatment, Patterson Smith Publishing Corporation, 1972, New Jersey, p 158.