TRADITIONAL AND MODERN THEORIES OF CRIMINAL PUNISHMENT

By Jaba Shadrack, UDSM – School of Law

Punishment (legal punishment as opposed to divine punishment) means;

• A sanction - such as a fine, penalty, confinement, or loss of property, right, or privilege - assessed against a person who has violated the law. (Black's law Dictionary, 9^th Ed, 2009).
  
• Sanctions such as fine, confinement, or loss of rights to property administered to a person convicted of a crime. (Webster's Law Dictionary, 2006)
  
  Punishments differ in the degree of severity of their unpleasantness, and may include sanctions such as reprimands, deprivations of privileges or liberty, fines, incarcerations, ostracism, the infliction of pain, and the death penalty.
  

Traditional/Classical Theories of criminal Punishment (Why punishment)

DETERRENT THEORY

• 'Deter' means to abstain from doing an act.
  
• The main objective of this theory is to deter (prevent) crimes (i.e. discourage someone from doing something by instilling fear of the consequences), e.g. chopping off hands of a thief.
  
• It serves a warning to the offender not to repeat the crime in the future and also to other evil-minded persons in the society.
  
  
• Jeremy Bentham (founder of this theory) says;
  
  ….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.
  

The basic idea of deterrence is to deter both offenders and others from committing a similar offence i.e. punishment for the general good of the society.

RETRIBUTIVE/PUNITIVE/JUST DESERTS/RETALIATION/REPRISAL THEORY

• Punishment inflicted in the spirit of moral outrage or personal vengeance (i.e. revenge, payback, 'lex talionis
  i.e. eye for an eye justice').
  
• 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
  
• The goal is to try to rebalance any unjust advantage gained by ensuring that the offender also suffers a loss, e.g. blood feud, capital punishment, mob justice, etc.
  
• Sometimes viewed as a way of "getting even" with a wrongdoer — the suffering of the wrongdoer is seen as a desired goal in itself, even if it has no restorative benefits for the victim.
  
• Majority or Jurists, Criminologists, Penologists and Sociologists do not support this theory as they feel it is brutal and barbaric.
  

PREVENTIVE/INCAPACITATION THEORY

• The idea behind this theory is to keep the offender away from the society.
  
• The offenders are punished with death, imprisonment for life, etc..
  
• The preventive theory is founded on the idea of preventing repetition of crime by disabling the offender through measures such as imprisonment, forfeiture, death punishment and suspension of licence.
  

EXPIATORY/REPENTANCE THEORY

• Jurists who support this theory believe that if the offender expiates or repents, he must be forgiven (i.e. offenders to feel or express sincere regret or remorse or penitence about their conduct).
  

• The aim of punishment is to make an offender to repent/expiate or realise the impact of his crime or wrong doing (i.e. suffering, loss or pain).
  
  Note: 
  It should be borne in mind that the above theories are, to a large extent, invoked in dealing with adult offenders (rather than children). Children are seen as immature, malleable, and developing individuals who are very different from adults. 

Contemporary/Modern Theories for the treatment of offenders/Justice System

RESTORATIVE/REPARATIVE JUSTICE:

• Is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender.
  
• Or is a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm.
  
• Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they have done by apologizing, returning stolen money, or community service".
  
• Restorative justice involves both victim and offender and focuses on their personal needs. In addition, it provides help for the offender in order to avoid future offences.
  
• It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state.
  
• Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.
  
• For minor offenses; punishment may take the form of the offender "righting the wrong", or restitution, community service or compensation orders are examples of this sort of penalty
  

REHABILITATIVE JUSTICE:

• Is a justice system which intends to reform criminal offenders rather than punish them or segregate them from the greater community.
  
• Some punishment includes work to reform and rehabilitate the wrongdoer so that they will not commit the offence again.
  
• This is distinguished from deterrence, in that the goal here is to change the offender's attitude to what they have done, and make them come to see that their behaviour was wrong.
  
• Rehabilitative methods include; Treatment (in case of drug abusers), Adoption, Foster Care, Sponsorship, Parole, Probation, community service, Separate Juvenile Justice System, use of indeterminate Sentencing and expungement (obliterate or destroy or remove completely criminal records).
  

REFORMATIVE JUSTICE:

• The objective is to reform the behaviour of the criminal.
  
• The idea behind this theory is that no one is born as a Criminal. The criminal is a product of the social, economic and environmental conditions.
  
• It is believed that if the criminals are educated and trained, they can be made competent to behave well in the society.
  
• The Reformative theory is proved to be successful in cases of young offenders.
  

REINTEGRATIVE JUSTICE:

• Reintegrate means to restore to a condition of integration or unity.
  
• Reintegrative justice is a process that seeks to empower individuals, families, schools, and communities by adopting problem-solving measures that provide new opportunities for inclusion in one's community designed to end the cycle of crime, poverty and racial injustice with the goal of promoting public safety and human rights.
  
• Reintegrative justice promotes a more humane and effective response to public safety concerns by diminishing reliance on prison, punishment and exclusion and by encouraging public investment in and use of intervention strategies that support successful reintegration, equal opportunity, and responsibility, thereby reducing the likelihood of return to risky and criminal behaviour.
  
• Reintegrative justice encourages the dismantling of the many barriers to successful reintegration that individuals confront after their involvement in the criminal justice system, including, but not limited to, barriers to employment, education, enfranchisement and equality.
  
• Reintegrative justice also promotes reforming the many aspects of our social institutions and systems that contribute to involvement in the criminal justice system in the first place.
  

The Pdf (and iPaper) documents with footnotes) are available at: www.scribd.com/jabashadrack/