Though opinions have always differed as regards punishment of offenders varying from age-old traditionalism to recent modernism, broadly speaking four types of views can be distinctly found to prevail. Modem penologists prefer to call them ‘theories of punishment’. The line of demarcation between these theories are, however, so then that they cannot be completely separated from each other. The eighteenth century utilitarianism formulated a social policy which provided a blue print for working out penal reforms and legislation in England during the Benthamite era.
The major theories of punishment laid down during that person are relevant even to this day excepting the theory of retribution, which stands completely discarded in modem penal programmes. These theories are briefly stated as follows:
1. Deterrent Theory:
Earlier modes of punishment were, by and large, deterrent in nature. This kind of punishment presupposes infliction of severe penalties on offenders with a view to deterring them from committing crime.
The founder of this theory, Jermey Bentham, based his theory of determine on the principle of hedonism which said that a man would be deterred from committing a crime if the punishment applied was swift, certain and severe. This theory considers punishment as an evil, but is necessary to maintain order in the society. The deterrent theory also seeks to create some kind of fear in the mind of others by providing adequate penalty and exemplary punishment to offenders which keeps them away from criminality. Thus the rigour of penal discipline acts as a sufficient warning to offenders as also others.
Therefore, deterrence is undoubtedly one of the effective policies which almost every penal system accepts despite the fact that it invariably fails in its practical application. Deterrence, as a measure of punishment particularly fails in case of hardened criminals because the severity of punishment hardly has any effect on them. It also fails to deter ordinary criminals because many crimes are committed on the spur of the moment without any prior intention or design. The futility of deterrent punishment is evinced from the fact that quite a large number of hardened criminals return to prison soon after their release.
They prefer to remain in prison rather than leading a free life in society. Thus the object underlying deterrent punishment is unquestionably defeated. This view finds support from the fact that when capital punishment was being publicly awarded by hanging the person to death in public places, many persons committed crimes of pick-pocketing, theft, assault or even murder in those men-packed gatherings despite the ghastly scene.
Suffice it to say that the doctrine concerning deterrent punishment has been closely associated with the primitive theories of crime and criminal responsibility. In earlier times, crime was attributed to the influence of ‘evil spirit’ or ‘free-will’ of the offender. So the society preferred severe and deterrent punishment for the offender for his act of voluntary perversity which was believed to be a challenge to God or religion. The punishment ought to be a terror to evil-doers and an aweful warning to all others who might be tempted to imitate them. This contention finds support in Bentham’s observation, who said:— “General prevention ought to be the chief end of punishment….
An unpunished crime leaves the path of crime open, not only to the same delinquent but also to all those who may have some motives and opportunities for entering upon it….. We perceive that punishment inflicted on the individual becomes source of security for all…… Punishment is not to be regarded as an act of wrath or vengeance against a guilty individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the society.” Bentham, however, believed that offenders must be provided an opportunity for reformation by the process of rehabilitation.
From this point of view, his theory may be considered forward looking as it was more concerned with the consequences of punishment rather than the wrong done, which being a post, cannot be altered.
2. Retributive Theory:
While deterrent theory considered punishment as a means of attaining social security, the retributive theory treated it as an end in itself. It was essentially based on retributive justice which suggests that evil should be returned for evil without any regard to consequences. The supporters of this view did not treat punishment as an instrument for securing public welfare. The theory therefore, underlined the idea of vengeance or revenge. Thus the pain to be inflicted on the offender by way of punishment was to outweigh the pleasure derived by him from the crime. In other words, retributive theory suggested that punishment is an expression of society’s disapprobation for offender’s criminal act.
Supporting the theory of retribution Emanuel Kant observed: “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or civil society, 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.” According to him, punishment is an end in itself therefore; retribution is a natural justification because society thinks that a bad man should inevitably be punished and good ought to be rewarded. Commenting on retributive theory Sir Walter Moberly observed that the theory of retribution is based on the view that punishment is a particular application of the general principle of justice, that men should be given their due. Punishment serves to express and to satisfy the righteous indignation which a healthy minded community regards transgression.
As such, it is sometimes an end in itself. It must be stated that the theory of retribution has its origin in the crude animal instinct of individual or group to retaliate when hurt. The modem view, however, does not favour this contention because it is neither wise nor desirable.
On the contrary, it is generally condemned as vindictive approach to the offender. Retributive theory is closely associated with the notion of expiation which means blotting out the guilt by suffering an appropriate punishment. It is this consideration which underlies the mathematical equation of crime, namely, guilt plus punishment is equal to innocence. Most penologists refuse to subscribe to the contention that offenders should be punished with a view to making them pay their dues. The reason being that no sooner an offender completes his term of sentence, he thinks that his guilt is washed off and he is free to indulge in criminality again.
Hegal opposed the theory of retribution and observed that it is the manifestation of revenge for an injury. To quote him, he said, “You hurt me so I will hurt you. Indeed that is the literal meaning of retribution. And if I cannot hurt you myself, I demand that you should be hurt by others. The desire to make the offender suffer, not because it is needed so that the guilt is purged, not also because suffering might deter him from future crime, but simply because it is felt that he deserves to suffer, is the essence of retribution.” It must be stated that Sir James Stephen defended the doctrine of retribution on the ground that “criminals deserved to be hated and the punishment should be so contrived as to give expression to that hatred, and to justify by gratifying a healthy natural sentiment.” However, the modern penology discards retribution in the sense of vengeance, but in the sense of reprobation it must always be an essential element in any form of punishment.
Preventive philosophy .of punishment is based on the proposition ‘not to avenge crime but to prevent it’. It presupposes that need for punishment of crime arises simply out of social necessities. In punishing a criminal, the community protects itself against anti-social acts which endanger social order in general or person or property of its members.
In order to present preventive theory in its proper perspective, it would be worthwhile to quote Fichte who observed, “The end of all penal laws is that they are not to be applied”. Giving an illustration he continued, “when a land owner puts up a notice ‘trespassers will be prosecuted’; he does not want an actual trespasser and to have the trouble and expense of setting the law into motion against him. He hopes that the threat will render any such action unnecessary, his aim is not to punish trespass but to prevent it. If trespass still takes place, he undertakes prosecution. Thus, the instrument or deterrence which he devised originally consisted in the general threat and not in particular convictions”. The real object of the penal law therefore, is to make the threat generally known rather than putting it occasionally into execution. This indeed makes the preventive theory realistic and gives it humane touch.
It is effective for discouraging anti-social conduct and a better alternative to deterrence or retribution, which now stand rejected as methods of dealing with crime and criminals. In England, utilitarians like Bentham, Stuart Mill and Austin supported preventive theory because of its humanising influence on criminal law. They asserted that it is the certainty of law and not its severity, which has a real effect on offenders. As an off-shoot of preventive view regarding crime and criminals, the development of prison institution gained momentum. The preventive theory seeks to prevent the recurrence of crime by incapacitating the offenders. It suggests that prisonisation is the best mode of crime prevention as it seeks to eliminate offenders from society thus disabling them from repeating crime. The supporters of preventive philosophy recognise imprisonment as the best mode of punishment because it serves as an effective deterrent and a useful preventive measure. It pre-supposes some kind of physical restraint on offenders.
According to the supporters of this theory, murderers are hanged not merely to deter others from meeting similar end, but to eliminate such dreadful offenders from society.
4. Reformative Theory:
With the passage of time, developments in the field of criminal science brought about a radical change in criminological thinking.
There was a fresh approach to the problem of crime and criminals. Individualised treatment became the cardinal principle for reformation of offenders. This view found expression in the reformative theory of punishment.
As against deterrent, retributive and preventive justice, the reformative approach to punishment seeks to bring about a change in the attitude of offender so as to rehabilitate him as a law abiding member of society. Punishment is used as a measure to reclaim the offender and not to torture or harass him. Reformative theory condemns all kinds of corporal punishments. The major emphasis of the reformist movement is rehabilitation of inmates in peno-correctional institutions so that they are transformed into law-abiding citizens. These correctional institutions have either maximum or minimum security arrangements. The reformists advocate human treatment of inmates inside the prison institutions.
They also suggest that prisoners should be properly trained to adjust themselves to free life in society after their release from the institution. The agencies such as parole and probation are recommended as the best measures to reclaim offenders to society as reformed persons. The reformative view of penology suggests that punishment is only justiciable if it looks to the future and not to the past. “It should not be regarded as settling an old account but rather as opening a new one”. Thus the supporters of this view justify prisonisation not solely for the purpose of isolating criminals and eliminating them from society but to bring about a change in their mental outlook through effective measures of reformation during the term of their sentence. Undoubtedly, modem penologists reaffirm their faith in reformative justice but they strongly feel that it should not be stretched too far.
The reformative methods have proved useful in cases of juvenile delinquents, women and the first offenders. Sex psychopaths also seem to respond favourably to the individualised treatment model of punishment. However, the recidivists and hardened criminals do not respond favourably to the reformist ideology.
It is for this reason that Salmond has observed that though general substitution of reformation for deterrence may seem disastrous, it is necessary in certain cases specially for abnormals and degenerates who have diminished responsibility. It therefore, follows that punishment should not be regarded as an end in itself but only as a means, the end being the social security and rehabilitation of the offender in society. Some penologists have denounced ‘rehabilitative ideal’ or the ‘reformist ideology’ underlying individualised treatment model because in practice they are more punitive, unjust and inhumane than retribution or deterrence. Writing about the condition of prisons in Russia and France, Peter Kropotkin observed, “prisons are seen as symbols of our hypocrisy regarding rehabilitation, our intolerance for deviants, or our refusal to deal with the root causes of crime such as poverty, discrimination, unemployment, ignorance, over-crowding” and so on.
Yet another argument which is often advanced against reformative treatment is that there is no punishment involved in it in terms of some sort of pain and therefore, it cannot be regarded as punishment in true sense of the term. But it must be pointed out that though reformative treatment involves benevolent justice, yet the detention of the offender in prison or any other reformative institution for his reformation or readjustment is in itself a punishment because of the mental pain which he suffers from the deprivation of his liberty during the period he is so institutionalised. Therefore, it is erroneous to think that institutional detention for reformation is not a form of punishment. In fact, surveillance and close supervision is itself punitive though it involves no physical pain or suffering. The authors of an American study also criticised reformist ideology stating that, “it never commended more than lip service from most of its more powerful adherents.
Prison administrators who embraced the rehabilitative ideal, have done so because it increased their power over inmates”. It is a known fact that punishment always carries with it a stigma inasmuch as it fetters the normal liberty of individual. It has become an integral part of law enforcement for securing social control. Punishment is inevitable for recidivists who are habitual law-breakers. The tendency among recidivists to repeat crime is due to their inability to conform to the accepted norms of society. Investigative researches reveal that it is the mental depravity of the offenders which makes them delinquent and therefore, a system of clinical treatment seems inevitable for the correction of such offenders. However, there is a need for compartmentalisation of offenders for this purpose on the basis of age, sex, gravity of offence and mental condition.
This object is achieved by scientific classification of criminals into different categories such as the first offenders, habitual offenders, recidivists, juvenile delinquents, insane criminals, sex phychopaths etc. The correct approach would be to treat punishment as a sort of social surgery since criminal is essentially a product of conflict between the interests of society.