INTRODUCTION
Theories of punishment have been propounded by various jurists at different ages of time. An authentic theory in this regard has been a subject of debate for many centuries. With time, various theories have been proposed with special reference to contemporary legal systems. Each theory has its own particular merits and demerits.
DEFINITION OF CRIME
According to Black’s Law Dictionary:
Crime is either a positive or negative act in violation of penal law, an offence against the State.
According to Law Lexicon:
A crime is an act or omission which is prohibited by law as injurious to the public and punished by the State.
DEFINITION OF PUNISHMENT
Punishment is a means to inflict pain or loss upon a person for his misdeed.
According to Law Lexicon:
Punishment is the penalty for transgression of the law.
CHARACTERISTICS OF PUNISHMENT
According to Hart, punishment must contain the following characteristics;
- It must involve pain or any other consequences normally unpleasant.
- It must be for an offence against legal rules.
- It must be against an actual or supposed offender for his offence.
- It must be intentionally administered by human beings other than the offender.
- It must be imposed and administered by the authority constituted by the legal system against which the offence is committed.
WHAT IS CRIMINAL JUSTICE?
Criminal justice is the body of law dealing with offences which may result in the imposition of punishments, such as fines or imprisonment.
FUNCTIONS OF CRIMINAL JUSTICE
Following are the functions of criminal justice that are very much important for society.
- Preservation of life.
- Protection of individual property.
- Protection of state & country.
- Exigencies of good government.
- Maintenance of public peace & tranquillity.
- Keeping morality and culture.
- Prediction of rights & liberties of people.
- To condemn the crimes, criminals & violation of the law.
OBJECTIVE OF CRIMINAL JUSTICE
The main object of punishment/criminal justice is the prevention of crime and every punishment is intended to have a double effect. The dual effect of punishment is discussed below.
- To prevent the person who has committed a crime from repeating the act or omission.
- To prevent other members of the community from committing similar crimes.
THEORIES OF PUNISHMENT
Besides the other schools i.e. Utilitarian and Retributive, there are four approaches as well, which are as follows;
A. DETERRENT THEORY:
It is one of the oldest theories of punishment. Deterrent theory can be described as consequentialist in nature. It looks forward in time and aims to achieve a preventive measure by deterring an offender from committing crimes in future.
This theory says that “By punishing one person, other like-minded persons are warned. So, they may think before taking law in their hands.”
PRINCIPLE
The underlying principle of the deterrent theory is that punishment should exceed in proportion to the crime committed.
But according to Benthem, this theory is a self-defence mechanism. When an offence is committed, society reacts in an aggravated manner in order to defend itself, causing the quantum of punishment to increase.
CRITICISM/OBJECTIONS
1. Ineffective in Checking Crimes: The deterrent theory has proved to be ineffective in checking crimes. Even when there is provision for very severe punishments in the penal law of the country, people continue to commit crimes.
2. Arises Public Sympathy: Excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishments.
B. PREVENTIVE THEORY:
Preventive or disabling is another object of punishment. The offenders are disabled from repeating that offence by punishments such as imprisonment, death, exile, forfeiture etc. For example, Preventive punishment is the cancellation of the driving licence of a person. As he has no licence, he is prevented from driving. Similarly, by hanging a murderer, he is disabled from repeating that crime.
This theory says that “the repetition of the offence by the same offender is prevented by imposing penalties such as death, exile, imprisonment etc.
PATON’S VIEW
The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in future. Death penalty and exile serve the same purpose of disabling the offender. Justice Holmes is also a great supporter of this theory.
PRINCIPLE
The underlying principle is that the law threatens certain pains, if you do certain things, intending thereby to give you a new motive for not doing them.
CRITICISM/OBJECTIONS
Firstly, When an offender is detained or disabled, the family members also suffer the consequences/results especially where the offender is the sole earning member of the family.
Secondly, Jails are the main form of punishment. Under this theory, they have turned into crime schools. Thus, it may turn the convict into a hardened criminal.
Thirdly, Preventive punishments are of temporary nature. They do not appeal to the conscience of the criminal rather they force the criminal to commit the crime again.
C. REFORMATIVE THEORY:
Reformative theory is a part of the therapeutic approach. This theory believes that an offender is a product of his circumstances and if it were not for those circumstances, he would not have committed the crime.
This theory says that “there should be reformative and training centres where the criminal should be bought and educated during this period of imprisonment.”
PRINCIPLE
The object is to transform the criminal into a good human being and a good citizen. The advocates of the reformative theory contend that by a sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their character.
CRITICISM/OBJECTIONS
Firstly, Habitual offenders, are excluded from this approach. Since hardened criminals cannot be reformed because they don’t commit crimes out of necessity but rather out of instinct.
Secondly, Since prisons are comfortable the offender may think of them as an escape from the outside world.
D. COMPENSATION THEORY:
The compensation theory is a part of the traditional approach with a utilitarian aspect. According to this theory, the punishment must not be merely to prevent further crimes but also to compensate the victim of the crime.
PRINCIPLE
- To compensate the victim.
- To deprive the offender of his property or possession as a punishment. Taking away property is worse than isolating him or killing him, physical torture or humiliation. This is because the property is a main weakness of man.
CRITICISM/OBJECTIONS
Firstly, It tends to oversimplify the motives of the crime. The motive of a crime is not always economic.
Secondly, If the offender is a rich person, the payment of any amount may be no punishment for him.
Thirdly, The offender who has no property cannot be punished.
Fourthly, Taking away property may lead to frustration and more crimes may be committed out of this frustration.
CONCLUSION
Criminal justice aims at awarding punishments and has various objectives. The perfect system of criminal justice cannot be based on any one theory of punishment. Every theory has its own merits and demerits. For a just criminal and harmonious criminal system to exist, an amalgamation of all the positive attributes of each theory should be adopted.
FAQs
Discuss in detail various theories of punishments and their enforcement in the administration of Criminal justice.
(2019-A, 2019 5 years)
Describe various theories of punishment and criticism of such theories.
(2018-A)
Offenders are being punished in different legal systems keeping in view various theories of punishment. Discuss?
(2017-S)
Offenders are punished in all societies keeping in mind the various theories of punishment. Explain the theories.
(2016-S, 2014-S)
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