theoris of punishment.pptx retributive, reformative, theories of punishment

theoris of punishment.pptx retributive, reformative, theories of punishment

1. Theories of Punishment Dhanashri Chougale @ Kadam

2. Theories of Punishment Administration of Justice is the primary functions of the State, it is generally divided into administration of Civil Justice and Administration of Criminal Justice. The main purpose of Administration of criminal Justice is to punish the wrongdoer. It is the State which punishes the Criminals. From the ancient times, a number of theories have been given concerning the purpose of punishment.

3. Punishment Meaning : Punish: Cause to suffer for offence, inflict penalty on offender for his crime. Punishment: Punishing or being punished; penalty inflicted on the offender; Punishment is a process by which the state inflicts some pain to the persons or property of person who is found guilty of Crime. Thus, punishment is defined as suffering, loss, pain, or any other penalty that is inflicted on a person for the crime by the concerned authority.

4. Punishment can be used as a method of educing the incidence of criminal behavior either 1. by deterring the potential offenders or 2. by incapacitating and preventing them from repeating the offence or 3. by reforming them into law-abiding citizens.

5. Object of punishment The Object of Punishment is to protect society from mischievous and undesirable elements by deterring potential offenders, by preventing the actual offenders from committing further offenses and by reforming and turning them into law abiding citizens. following reasons and purposes of punishment in criminal justice system. 1. Peace: By implementing the punishments, the wrong-doers are prevented to do crimes in their remaining life. Hence peace prevails in the society. 2. Prosperity: Punishments create fear in the minds of the law-abiding citizens, probable offenders, and criminals. They afraid to commit crimes. The crime rate shall be decreased. The people in the society/State can concentrate on agriculture, industry and economy. Thus the people and State will do well in all the fields .

6. 3. Deterrence: When a criminal is punished for the offence committed by him, he afraid to commit any offence in h1s remaining life. In the same way, when a criminal is punished, other people of the society also afraid to commit offences. 4. Reformation: Where a criminal is punished and there are chances not recurring his criminal behavior. Thus it helps to prevent the crimes in the society.

7. 5. Selfishness: Every man is selfish. To get his selfish desires, he prepares to commit crimes. Punishments under criminal justice system prevents such tendencies of criminal behavior. Punishments control the men from doing criminal acts. 6. Fear of punishment: The jurisprudents, penologists, etc. fix the quantum of punishment for each criminal act. The people fear to do criminal acts, which are declared as punishable with the fear of imprisonment and punishment.

8. In short Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances. It is a sequel of a wrongful act There must be some relationship between the punishment inflicted and the crime committed. The punishment is a form by which a criminal is made answerable to the society.

9. Theories of Punishments : 1.) Deterrent Theory Meaning – to deter' means, - " to abstain from action/ doing ". Deterrent means, "infliction of severe punishments with a view to prevent the offender from committing the crime again.“ “Deterrent punishments” means “severe punishments, intends to prevent the offender from again committing the crime. The theory of deterrent punishments hopes that by imposing the severe punishments, the persons will fear and thus abstain from criminal behavior. Thus the criminal rate and behavior are decreased, and the Peace shall prevail in the society ”

10. if severe punishments were inflicted on the offender would deter him from repeating that crime. As per theory, 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. According to this theory, the people will calculate their every act with their profit. No person can do any act which is not profitable to him. In the same manner, if the punishments are stricter and serious, the general people will not commit such offences which are not beneficial for them. This is the purpose of the Deterrent Theory.

11. The Deterrent Theory suggests that the punishments should be implemented openly, not within four walls. Example - A murdered B. The Court passed death sentence on A. The death sentence on A must be implemented before the public in noon, not within the four walls of the prison at dawn. This type of punishment will definitely create tension, fear in the majority of the people. In turn they will not commit any such serious offences. X raped Z. X must be punished before the public, and such punishment must be very severe, viz. cutting his limbs, stoning etc. The people must hate the criminal. They must scold in abusive language. This causes fear in the remaining people tending to criminal behavior. The criminal punished severely shall not become recidivist.

12. A Judge once said : " I don't punish you for stealing the sheep but so that sheep may not be stolen." The aim of punishment is not revenge but terror. According to Manu "penalty keeps the people under control, penalty protects them, penalty remains awake when people are asleep, so the wise have regarded punishment is a source of uprightness". According to Paton " The deterrent theory emphasis the necessity of protecting society, by so treating the prisoners that others will be deterred from breaking law.

13. The deterrent theory was the basis of punishment in England in the Medieval Period. Sever and Inhuman punishments were order of the day and inflicted even for minor offenses like pick pocketing and stealing etc. The culprits were subjected to the sever punishment of death by stoning and whipping. In India during the Mughal period, the penalty of a death sentence or mutilation of the limbs was imposed even for the petty offenses of forgery and stealing etc. the deterrent theory is the basis of Penal Jurisprudence.

14. Criticism: There is a lot of criticism of the deterrent theory of punishment in modern times. The Deterrent Theory explains the general tendency of the people. It cannot restrain the recidivism perfectly. Several crimes occur suddenly on psychological frictions. Certain people cannot control their angry, ill feelings. They explore suddenly. There are several incidents occurred in our India, viz. killing the bus conductor for not returning change, beating the pan shop keeper for not giving credit, murdering a person just for ten rupees, etc. The deterrent system does not create any fear in the minds of such people. At that time, the wrong-doer does not remember the punishment which would be imposed upon him and its consequences. Only revenge is remembered. By the deterrent system such crimes cannot be prevented.

15. Further, this system could not prevent recidivism. A habitual offender is habituated in doing the offences. He does not fear about the punishments which shall be imposed on him. it has been criticized on the grounds that it has proved ineffective in checking crimes and also that excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel and inhuman punishment. Hardened criminals are not afraid of punishment. Punishment losses its horror once the criminal is punished.

16. 2. RETRIBUTIVE THEORY MEANING: “Retributive” means “punitive; to recompense; to pay back; to make a return to;.” Retributive Theory says to return the same injury to the wrong-doer which he had committed against the victim. It says “a tooth for a tooth” and “an eye for an eye.”

17. Purpose: Retribution is by way of punishment. If A beats B and causes his left leg is broken. This theory says to break A's left leg. By this system, the wrong-doer suffers the same quantity of injury, and harm which the victim suffered. He realizes what criminal act he committed against the weak victim, and suffers the same with regret. Such wrong-doer could not repeat the same wrongful act, or any other criminal act with the fear of retribution. The people of the society will fear the punishments and thus they will afraid to commit any criminal act. Thus the crimes are prevented and the criminal behavior is reduced in the society. Still now, in several Islamic countries, this system is followed. This system-aims to remove bad by adopting bad procedure, Diamond only can cut another diamond. It pays the correct and actual return to the crime. The victim also satisfies psychologically because the same injury and harm are suffered by the criminal, whom he could not attack. Thus his personal revenge is also satisfied.

18. According to this theory, the crimes are prevented. Peace shall prevail in the society due to severe nature of punishment. The criminal behavior will automatically be reduced. The tensions and personal revenges will be decreased. When a person expects the same injury to him, he could not dare to do the injury to another person. Psychologically, he is abstained to do such illegal acts. There are several incidents showing it. Certain armored groups of thieves attack on the villages to plunder the villagers. In Hyderabad urban areas, certain villagers reattacked such thieves and in doing so they killed the thieves. The police, Government and Court did not punish such villagers, as their act was to protect their own lives and properties. The villagers acts cannot be defined as criminal acts. The Indian Penal Code also protects them under “Right of Self Defense ° A-a rowdy kidnaps B a girl, and tries to rape her. She kills A. B is not punished. The law provides certain protection to certain persons to protect their lives and properties in certain occasions It is called “Right of Private Defense”

19. CRITICISM: The critics of this theory say that retributive punishment 1s barbaric and brutal. Bentham in his Utilitarian Theory criticizes retributive punishment seriously. He opined that no peace and prosperity shall be accorded to majority people in the society by adopting retributive punishment. He also opined that gradually entire society would be destroyed with personal revenges. According to his theory, the duty of punishment must be accorded to the society/State. No individual shall take the law into his own hands. If it 1s permitted, every one tries to take revenge under the bias of certain reasons. The critics also opine that the retributive theory could not show any solution for social and economic offences. Moreover, this system cannot explain the remedies for the persons who commit the offences on temporary angry, insanity. Majority of criminologists, jurists, penologists, sociologists, jurisprudents do not support this theory Only victimologists support it to certain extent.

20. 3. EXPIATION THEORY MEANING: “Expiation” means “ the act of expiating; reparation; amends; compensation; atonement ’. According to Expiation Theory, compensation is awarded to the victim from the wrong-doer. By awarding compensation from the pocket of the wrong-doer, he is punished, and is prevented from doing such offences in his remaining life. This also becomes a lesson to the remaining public. Lily, Criminologist opines: “The criminal violates the law, and trespasses against another person, and causes injury, harm. Thus he becomes a debtor to the victim. It is just to the Court to pass an award of compensation payable by the criminal to the victim. By paying compensation, the society recognizes the right of the victim. He satisfies. There is no question of personal revenge. The criminal is too punished economically. Thus the criminal justice system achieves its target of prevailing peace and prosperity in the society, and to prevent the crimes in the State.”

21. PURPOSE: Generally, in older system of punishment, the victim is not taken into consideration. The criminal justice system concentrates only on punishing the criminal. The Courts are not in a position to point out the aggrievance of the victim or his family members. They only have the aim to prevent the crimes. They only know to punish the criminals. Recently by the efforts of the sociologists, criminologists, penologists, etc. the criminals are also not punished severely, and there are certain rehabilitative and reformative steps taken to reform the criminals its a good and welcome measure. Then what about the real victims, who suffered in the hands of such criminals In majority cases, the real victim also becomes as a criminal and wants to take revenge against the wrong-doer or his family. Psychologically, economically, socially, etc. the victim is not satisfied by mere punishment on the criminal.

22. The jurisprudents, jurists, criminologists, penologists, sociologists, etc. too are not concentrating However, recently separate researchers, scientists under the name of “Victimologists” are propounding to give certain remedies to the aggrieved victims and their families. This separate science is called “Victimology.” This theory supports Expiation Theory. According to the Victimologists, the chain reactions of personal revenges can be decreased in the society by awarding compensation to the victims from the property of the criminals. It can prevent the criminal behavior in the society. Because it stops chain reaction. It subsides the personal revenge. Economically too, the victim or his family members satisfy with the money and can lead their remaining life safely. It also creates shame in the minds of the criminals. Thus a considerable sect of modern criminologists, jurists, penologists, jurisprudents, sociologists, etc. support the idea of victimology and expiation theory.

23. State vs. Sayyaduddin 1996 AP Justice Motilal Naik of A P. High Court gave a sensational judgment on 25-11-1996 covering this expiation theory. The case particulars are: Sayyaduddin and his brother raided Masiehuddin due to personal grudges As a result Masiehuddin was killed. The High Court imposed three years imprisonment to the accused and awarded Rs 60,000/as compensation payable by the accused to the family members of Masiehuddin. Delivering the judgment Justice Motilal Naik observed: “By imposing imprisonment on the accused could not be helpful to the family members of the victim. In my opinion, it is better to help the victim's family members, as there is no one to look after them after the death of the bread- earner. Therefore, it is justified to impose a penalty/fine RS 60,000/on the accused besides sending him to prison for three years.”

24. CRITICISM. The penologists criticize the expiation theory opining that this theory is sufficient to meet the less serious type of offences, Such as abuse, assault, defamation, trespass, etc. However, the expiation theory, could not be a solution in cases of murder, plunders, rapes, kidnapping, thefts, etc. serious natured offences. If the compensation is allowed to be paid in rapes, the number of rapists will be increased. The rich people will be habituated to rape the poor women, and pay the compensation. By their money, they become recidivists. They Can escape imprisonment by paying money. Therefore, it could not prevent the serious offences.

25. One more difficulty is there in expiation theory. In what measures the compensation can be fixed in cases of rapes, kidnapping, murders. etc. Some times, the criminals may not have sufficient money to pay compensation. How much compensation can be awarded to a woman raped? How the society will react against her and rapist? If the woman raped is awarded money, does she not become habituated in filing false complaints? So by expiation theory, the crimes Cannot be prevented, even though certain amount of compensation is awarded to the victims. Therefore, it is not a correct remedy to prevent the crimes in the society.

26. However, in Criminal Procedure Code, 1973 this theory is already being implemented. This code classifies the offences in two categories one serious natured crimes and another simple crimes. Section 320 describes certain crimes, which can be compoundable. The accused can compromise with the victim by paying money or apology. Assault, defamation, etc. are classified as “compoundable offences” under Section 320. The framers of the Code intentionally excluded the offences of murder, kidnapping, rape, theft etc. from compoundable offences. These cases are not compromisable and compoundable. The State shall inquire & investigate and punish the culprit to protect the society from such culprits.

27. 4. PROTECTION OR PREVENTIVE THEORY MEANING: This Theory is based upon the Proverb “Prevention is better than cure”. This Theory says that to imprison all the criminals and keep them at a long and far distance not connecting with the society. Thus the society can be prevented from the crimes. Peace will prevail in the society and prosperity can be achieved by picking up the criminals, and keeping them within four walls. This theory supports to impose rigorous imprisonment, Capital punishment, banishment, whipping, amputation, stoning, etc. It says that the State should take the precautionary steps to prevent the crimes and to protect the society from criminal behavior, besides the punishing the criminals after they do offences.

28. PURPOSE: Fish, Criminologist observes: “The primary object of the criminal justice system is to establish peace and crime-less society without using the sections of the penal code repeatedly. For example: A factory owner puts a Notice board in front of his house, viz. “Trespassers and incomers without permission shall be prosecuted" or a house owner puts a notice board “Beware of Dogs’ etc. It means that no person is entitled to enter into his house without his permission. The notice board works as a warning. it warns and brings the intention of the owner to the new comer. First he should obtain permission from the house owner, and then enter into the factory or house. The violators of the warning/notice board shall be prosecuted. In the similar way, the penal code works as a notice board. The people must notice its contents, and behave accordingly. If any of them violate the law, they shall be prosecuted severely and kept in prison. Thus all the penal laws of all the countries should work as a measure of protection or preventive measure.”

29. Distinction between Deterrent Theory and Protective/Preventive Theory: There are certain near resemblances between these two theories. Both the theories concentrate to create terror and fear in the minds of the people, and to prevent them causing offences. Both follow the similar punishments to create fear and tensions in the minds of the people and criminals. However, there are certain differences in between them. The Deterrent Theory opines to prevent the offences by threatening, fearing the criminals and the people by imposing strict and serious punishments, Whereas the Protective and Preventive Theory follows to prevent the offences from the society by keeping the criminals at a far and distant places/prisons by threatening, fearing the criminals and the people by imposing strict and serious punishments. The defects which are applicable to Deterrent theory, and explained above, are all applicable to the Protective/Preventive Theory too.

30. 5. REFORMATIVE THEORY MEANING: This theory presumes that the adamant and habitual offender can also be changed into a law-abiding citizen by reformation. According to this theory, crime is a disease. It says: “No one is a born criminal. A criminal is the product of the social and economical circumstances." There are several factors viz. social, economic, physical and psychological, etc. factors creating this disease. The causing factors are within the society inherently. First these Causes shall be removed. Then automatically the crimes will be reduced. Criminal behavior 1s also reduced in the society. The modern psycho-analysts, criminologists, penologists, sociologists, political leaders etc. are behind this modern theory. Gandhiji said: “Hate the sin, but not sinner.” Entire reformative theory 1s depended upon this principle.

31. PURPOSE: The modern penology recognizes that punishment is no longer regarded as Retributive or Deterrent, but it is regarded as “Reformative” or “Rehabilitative.” There are several treatments and medicines for every disease. Like this, the criminal behavior is also a disease. First it shall have to be cured. The creating factors of this disease are inherent in every society. Man is born in society. Due to several reasons, he becomes a criminal. No person willfully becomes as a criminal. If these factors and causes are treated efficiently, no doubt, there will be no single offender in the society. For this treatment, the Government should formulate effective procedures and policies, the Government officers should dedicate to implement them, the people should give moral support to their programmes, etc. Poorness is the root cause of several crimes. If the poverty is removed, several crimes can be mitigated.

32. Therefore, the criminologists and sociologists, opine that for majority of crimes “poorness’ is the real enemy. If the road is good, any vehicle can go speedily. If the road is spoiled, no vehicle can travel. Similarly, if there are defects, viz. poorness, illiteracy, unemployment, etc., in the society, how the criminal behavior is mitigated? Once a person is sent to prison, the society humiliates him. It cannot forgive him. To meet the police and court expenses, such person is compelled to incur huge amounts, and in majority times all his assets. He loses his job. He loses his lover or wife and family members. The society does not welcome him back. It treats him as a “criminal for ever.” This compels him to become a recidivist. There are physical and psychological factors compelling a person to commit a crime. If those factors are not removed, he repeats such crimes. If the Courts are continuously punishing the criminal after criminal, the number of criminals will be doubled within a year. Like this, the criminal behaviour will be spreaded in entire society. Thus entire society will be diseased and is push to a state, which cannot be cured later.

33. This theory also recommends to commit the criminals into prisons. But those prisons should not be consisted with iron and cement walls. The prisoners must be treated as patients. They must be taught education and any professional skillness. The reformists suggest to eradicate all defects in the society and the individuals. They also suggest to remove capital punishments, life imprisonments, rigorous imprisonments. They suggest to educate the criminals in academic and in any technical course, and also moral education. The prison officials should behave with the criminals with courtesy and on humanitarian grounds, treating them as patients during their imprisonment. After their release too, the society should not hate them. The society should not humiliate the offenders, who returned from the prison. By such treatment only, there is safety to the society.

34. There is complete responsibility upon the society and government. It is the primary duty of the society to welcome such offenders, and to give love and affection. It is also the duty of the Government to formulate the policies and procedures for the criminals, and to allot the necessary funds, and see that their programmes are implemented without failure.

35. Rehabilitation and after care programmes: According to Reformative theory, much attention is taken to the rehabilitation and after care programmes. Such programmes yield good results in curbing recidivism. The rehabilitative and after care approaches are welcome throughout the world. There are three types of programmes (1) Psychological, (11) Educational and (11!) Vocational (training in any trade)

36. To teach any profession in the prison is the first step of reformation, and another to provide financial assistance to a released convict by Government and banks is another step. To give all guidance to criminal-returned from prison to establish his own livelihood is rehabilitation. To give medical treatment for his psycho problems is also a rehabilitative and after care programme. These programmes reduce the offender's further criminal activity, and create a security for his life and mind. By this standard, the true test of rehabilitative success is non-involvement in crime following an offender's participation in an intervention program.

37. CRITICISM: No doubt to say that reformative theory is well and good But to what extent? How much? Is it practicable to reform all the criminals of the society, including habitual offenders? The population is increasing day-by-day. Urbanization, industrialization, new technology in every walk of life are increasing. Every body has become busy. To-day's man has no time to spare a little time for his fellow citizen. Some do not have time to spend with their children. He calculates every minute with money. The last category people of poor are living themselves in miserable conditions Then who will spare the time to reform the criminals?

38. Another point of criticism on the reformative theory is that the reformists think over deeply for the criminals. But they do not think over about the victims and victims’ dependents. What is the fate of victims and their families? Who will protect them? Who will provide livelihood to the wives and children of the victims. Those wives and children are suffering for food, cloth and shelter, without any fault of them. Reformative theory does not say about those suffering victims. Reformative theory shows sympathy of a criminal-rapist, and wants to reform his criminal mind to ordinary non-criminal mind. Then what about the woman or girl raped by him? Who will provide safety, livelihood in the society? Why don't the reformists calculate all these matters before formulating any reformative methods to the criminals?

39. CONCLUSION: So far all the theories explain the imposition of punishment in their own thinking. However, each theory has its own merits and demerits. Whatever the opinions and findings of penologists, psycho-analysts, sociologists, criminologists, jurists regarding the punishments, the opinion of General People is: “The interests of social defence and individualization of punishment may be combined in a rational sentencing process. And such combination must afford the peace to the society and safety to the individual.