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Theories of Punishment
Punishing criminals is a function of the State. In the past, there were no strict rules for punishment and the quantum and extent of punishment largely depends on the King or the ruler. However, modern punishments are based on the nature of offense and are largely brough by the British and Western countries. Penologists have formulated several theories that deal with punishments.
The five modern theories are:
- Deterrent Theory
- Retributive Theory
- Expiation Theory
- Protective or Preventive Theory
- Reformative Theory
Deter = Abstain from action
Detterent Punishment = Severe Punishment; Intended to prevent the offender from doing again committing the crime.
The aim of this theory is to inflict various penalties on the offenders with a view to deterring them from committing crime. This theory also seeks to create a sense of fear in the mind of others with a view to keep them away from committing such crime. The rigor of the punishment acts as a warning to others.
Deterrence fails in the case of hardened criminals because the punishment hardly has any effect on them. This can be said from the fact that many criminals return to prison. They prefer to live in a prison to live a normal life.
The aim of this theory is to be a terror to the evil-doers and a warning to all others who might be tempted to imitate them.
According to the exponents of this theory, punishment is meant to prevent the person concerned and other persons from committing, similar offences. The advocates for the retention of capital punishment rely on this theory in support of their contention. They argue that capital punishment, by its very nature, cannot have either a reformative value or be a retributive necessity. Its only value, if at all, is by way of deterrence.
However, the theory of deterrent punishment fails to achieve its goal. A hardened criminal becomes accustomed to the severity of the punishment, and deterrence does not always prevent him from committing a crime. On the other hand, it also fails to affect an ordinary criminal, as very often, a crime is committed in a moment of excitement. If the crime is pre-mediated, the offender commits the crime, knowing fully well, the consequences arising from his act and performs the act because he cannot help but do it.
This method is still in use in Muslim countries.
'Retributive' means 'punitive; to re-compensate; to payback'.
Retribution is by way of punishment. This theory says that the wrong doer should be given the same punishment as that will be suffered by the victim.
Principle of the theory: 'a tooth for a tooth .. an eye for an eye .. a limb for limb and nail for nail'.
Earlier, legal sanctions grounded in vengeance and retaliation - revenge is justice gone wild.
The methods of this theory are found to be archaic, inhuman and barbaric – modern human rights philosophy condemns this cruel concept.
According to this theory, the moral satisfaction that society obtain from punishment cannot be ignored. On the other hand, if the criminal is treated very leniently, or even in the midst of luxury, as the reformative theory would have it. (and as actually happens in some prisons of the world, which are equipped with airconditioning, private toilets, TV sets etc.), the spirit of vengeance would not be satisfied, and it might find its way through private vengeance. Therefore, punishment, instead of preventing a crime, might indirectly promote it.
Unfortunately, the retributive theory ignores the causes of the crime, and it does not strike at the removal of the causes. A mere moral indignation can hardly prevent crime. It is quite possible that the criminal is as much a victim of circumstances as the victim himself might have been. It is also unfortunate that this theory overlooks the fact that two wrongs do not really make a right. The theory also seems to ignore that if vengeance is the spirit of punishment, violence will be a way of prison life.
'Expiation' means 'compensation'.
So, the focus of this theory is - “to pay for the sin committed”
According to this theory, a compensation is paid to to the victim on the wrongdoer. The society recognizes the right of the victim. The criminal is punished economically.
Repentance, compunction, atonement and reparation - conscience oriented cleansing of hearts.
Offender to serve the victims and their dependents to compensate the deprivation.
Held impracticable being too idealistic.
Experimentation of this theory is too expensive in terms of public safety and security.
According to Victimologists, the chain of personal vengence can be reduced in the society by awarding a compensation to the victims from the property of the criminals. It can prevent the criminal behavior in the society. Because it stops the chain reaction, it susides the personal vengence.
Protective or Preventive Theory
This theory says that all criminals should be imprisoned and kept them far away from the normal society without any connection to it. Thus, the society will be protected from the criminals and will be in peace. This theory feels that protecting the society from criminals is better that curing the minds of the criminals.
This theory concentrates on the prisoner to prevent him from repetitive endeavors – to ward off recidivism. Offenders disabled by punishments like death, exile or forfeiture of office and incarceration. Hence, rigorous imprisonment, capital punishment, banishment, whipping, amputation and stoning are allowed punishments according to this theory.
The onus of imposing punishments falls on the State.
The disadvantage of this method is that it will give undesirable effect on first offenders or juvenile offenders.
“Condemn the Sin, not the Sinner” – Mahatma Gandhi.
This theory uses social, economic, physical and psychological methods in bringing about change in the minds of the criminals.
Reformation process is like a surgeon operating on a person to remove the pain. It is a craft or skill in bringing back the tainted and condemned culprits to national mainstream and civil society, as meaningful citizens.
According to this theory, crime is like a disease. This theory maintains that "you cannot cure by killing". The exponents of the reformative theory believe that a wrong-doers stay in prison should serve to re-educate him and to re-shape his personality in a new mould. They believe that though punishment may be severe, it should never be degrading. To the followers of this theory, execution, solitary confinement and maiming are relics of the past and enemies of reformation. Thus, the ultimate aim of the reformists is to try to bring about a change in the personality and character of the offender, so as to make him a useful member of society.
The reformists argue that if criminals are to be sent to prison in order to be transformed into law-abiding citizens, prisons must be turned into comfortable, dwelling houses. This argument is, however, limited in its application, and it must be remembered that in a country like India, where millions live below the poverty line, it may even act as an encouragement to the commission of crimes.
Critics hold the prisons as dwelling homes – a satire.
- Suspended Sentence, the power of suspending sentence