CRIMINOLOGY

ASSIGNMENT
TOPIC: Theories of
Punishment

Submitted by:
Taiyeba Noor Fatima
B.A LL.B(Hons.) S/F
5th Sem
Roll No.-57
Acknowledgment
I Taiyeba Noor Fatima would like to express my special thanks of gratitude to my teacher Dr.

C.A. RASHEED who gave me the golden opportunity to present the project on ‘Theories of

Punishment’ which also helped me in doing a lot of Research and I came to know about so many

new things I am really thankful to him. Secondly I would also like to thank my parents and

friends who helped me a lot in finalizing this assignment within the limited time frame.
INTRODUCTION
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:
It involves the deprivation of certain normally recognized rights, or other measures considered
unpleasant.

It is consequence of an offence.
It is applied against the author of the offence.
It is 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. Debunking the stringent
theories of punishment the modern society is seen in loosening 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 matter 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 educating 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. 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.
Theories of 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 the 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:
1. Deterrent
2. Retributive
3. Preventive
4. Reformative

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.
Deterrent Theory
One of the primitive methods of punishments believes in the fact that if severe punishments were
inflicted on the offender would deter him from 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 been, 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 affected at all by these restrictions rather they tend to enjoy these
restrictions more than they enjoy their freedom.
Retributive Theory
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.
It was based on the retributive justice which suggests that evil should be returned for evil. 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",

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.

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.
Preventive Theory

Unlike the former theories, this theory aims to prevent the crime rather than 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.

Fichte in order to explain this in greater details puts forward an 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 types 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.

Reformative Theory

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.
Conclusion
There is an attempt to portray punishments as a method of inflicting of unpleasant circumstances
over the offender.

Though certain theories like the reformative and preventive rely upon humanitarian modes of
punishment, but these have a weakness against the hardcore criminals.

Punishments such as the retributive and deterrence though the use of fear as an instrument to
curb the occurrence of crime helps in controlling the criminals up to a certain extent. As these
employ the idea of revenge and vengeance these are much more harsher than others.

The researcher would like to add his own views on this very controversial topic. We all know
that truth is stranger than fiction and so is the practice of these theories. Though prisons are
meant to be the place where the criminals would be corrected or for that case deterred from
committing a wrong in the future, but the present day witnesses the prisons to have become
redundant in their objective and becoming sites of breeding for hardcore criminals. This is a fact
that the penologists must look into. Furthermore the techniques applied in executing the
punishment are not fool proof, for e.g. the criminals are able to carry on their illegal activities
even during serving the period of sentence. Though in theory all of the punishments discussed
above may seem perfect if used collectively, but this all becomes a mere joke when tried to
implicate in the practical sense.
Bibliography
BOOKS REFERED:
1. Prof. N.V. Paranjape, Criminology & Penology with Victimology, 15th edi.,
Central Law Publications, Allahabad, 2012
2. Paranjape N.V., Studies in Jurisprudence and Legal Theory,7th edi.,
Central Law Agency, Allahabad,2013

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