Traditional and Modern Theories of Criminal Punishment - Tanzania (updated)
By Jaba T. Shadrack, UDSM – School of Law
Punishment (legal punishment of criminals in criminology
as opposed to divine punishment of sin/evil in theology). Punishment is imposed because some
person has done wrong.
A: Definition: Punishment
·
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, 9th 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)
·
Formal
and impressive condemnation by society against criminal behaviour
Punishments differ in the degree of severity of
their unpleasantness, and may include sanctions such as reprimands, burden, deprivations
of privileges or liberty, fines, incarcerations, ostracism, the infliction of
pain, and the death penalty.
B: Features/characteristics of Criminal
Punishment: Practical Limitations[1]
(i)
(i) Punishment
must be an evil/inflict pain, i.e. an
unpleasantness to the victim or something that creates positive suffering and
capable of depriving offenders something they would like to retain.
(ii) (ii) Punishment
must be for an offence.
Nulla poena sine leges and
nulla poena sine crimen (no punishments outside the law, no punishments
except for a crime).
(iii)
(iii) Punishment
must be of an offender, actual or supposed. However, no one should suffer on
behalf of another person.
(iv)
(iv) It
must be the work of personal agencies; in other words, it must not be the
natural consequence of an action.
(v) (v) Punishment
has to be proportional to the crime committed (Punishment fits the crime).
(vi)
(vi) Punishment
has to be imposed by virtue of some authority/independent body (it must be
imposed by an authority or an institution against whose rules the offence has
been committed), i.e. if it is an
action by an aggrieved person it is revenge or mob justice (imposed after due
process of the law).
(vii) (vii) The
punishment, in the form of sentence, has to be determinate or certain.
Summary:
Five (5) Key Elements in understanding punishment (Prof. Flew, Hart and Benn).
(i) it must
involve pain or other consequences normally considered unpleasant. (ii) it must
be for an offence against legal rules. (iii) it must be of an actual or
supposed offender for his offence. (iv) it must be intentionally administered
by human beings other than the offender. (v) it must be imposed and
administered by an authority constituted by a legal system against which the
offence is committed, e.g. school,
court, tribunal and etc.
C: Forms of Punishment
Basically,
there are three (3) forms of punishment, namely;
i)
( (i) Physical
punishment (e.g. death penalty,
mutilation, corporal punishment and etc.)
ii)
(ii) Custodial/Confinement
(e.g. imprisonment, detain, House
arrest, and etc.)
iii)
(iii) Non-custodial
(e.g. verbal warning, pecuniary
penalty, parole, community service, and etc.)
An
individual may be punished for a crime if he/she has actually committed or
perceived to have committed (direct punishment) or for failure to prevent its
occurrence (vicarious/collective/indirect punishment) or conspiring to commit a
crime or knowingly benefiting from a crime committed by someone else. The
imposing authority may either be a public body (centralised sanction) or a
private entity (decentralised sanction).
D: Why Criminal punishment?
Justification
This question
might produce the following responses:
·
They
deserve to be punished.
·
Punishment
will stop them from committing further crimes.
·
Punishment
tells the victim that society disapproves of the harm that he or she has
suffered. Punishment discourages others from doing the same thing.
·
Punishment
protects society from dangerous or dishonest people.
·
Punishment
allows an offender to make amends for the harm he or she has caused.
·
Punishment
ensures that people understand that laws are there to be obeyed.
Philosophical Theories of Punishment
1 1. Traditional or Classical Theories of Punishment[2]
(i)
Deterrence Theory[3]
·
'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[4] (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.
Cesare Beccaria, and Jeremy Bentham's theory was based on a hedonistic
conception of man (utilitarianism) and
that man as such would be deterred from crime if punishment was applied
swiftly, certainly, and severely. But being aware that punishment is an evil,
he says,
If the evil of punishment exceed 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 i.e. punishment for
the general good of the society.
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.[5]
(ii)
Rehabilitation
·
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 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[6],
Probation[7],
community service, Separate Juvenile Justice System, use of indeterminate
Sentencing and expungement (obliterate or destroy or remove
completely criminal records).[8]
(iii)
Retributive/Punitive/Retaliation/Reprisal
Theory
·
Punishment
inflicted in the spirit of moral outrage or personal vengeance (i.e. revenge, getting
even, payback, ‘lex talionis i.e. eye for an eye justice’)[9]
for instance, mob/street justice, blood feud and vigilantism.
·
The
underlying assumption is that a criminal behaviour tend to give unfair benefit
to the offender and a loss to the victim. Therefore, a punishment is imposed to
ensure that the offender also suffers a loss.
The suffering of the wrongdoer is seen as a desired goal in
itself, even if it has no restorative benefits for the victim.
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 re-balance 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.
(iv)
Preventive/Incapacitation Theory
·
The
idea behind this theory is to keep the offender away from the society[10].
· It
involves removing offender’s ability to commit further offences. For instance,
imprisonment separates offenders from the community, thus removing or reducing
their ability to carry out certain crimes. Notably, the death penalty does this
in a permanent or irrevocable way. With the same justification, in Mohammedan
law a thief’s hands may be amputated.[11]
· 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.
(v)
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.
2 2. Contemporary/Modern Theories for the
treatment of offenders/Justice System
·
This 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
apologising, 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 offences; 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
(ii)
Reformation Theory
·
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.
(iii)
Reintegration Theory
·
Reintegrate
means to restore to a condition of integration or unity.
· Re-integrative
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.
· Re-integrative
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.
· Re-integrative
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.
· Re-integrative
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.
(iv) Compromise/Integrated/Unified Theory of
Punishment
Advocates
of this theory tries to combine two or more theories above to justify criminal
punishment. Notably, a number of theories of punishment have been advanced that
in some manner merge elements of retributive and utilitarianism.
QUIZZES
a. Is punishment a necessary evil? (Why)
b. How do you draw a line between
punishment and torture/inhuman treatment? (Discuss)
c. Do we still need death penalty? (Why)
d. What is the difference between divine
punishment and legal punishment?
e. What is the difference (in terms of
punishment) between mala in se and mala prohibita?
f. What is Just Deserts?
g. What advantage would society gain if
restorative justice were the only method of punishment? In your answer consider
all the advantages and disadvantages offered by a restorative justice approach
to punishment.
h. Is punishment morally justifiable? Discuss
REFERENCES:
Bittner, E. & Platt, A.M.
(1966) the Meaning of Punishment. Issues
in Criminology, Vol. 2, No. 1, Treatment and Punishment (spring), pp.
79-99.
Flew, A.
(1954) The Justification of Punishment.
Philosophy, Vol. 29, No. 111, pp. 291-307.
Hart, H.L.A. (1959) The Presidential Address: Prolegomenon to the Principles of Punishment.
Proceedings of the Aristotelian Society, New Series, Vol. 60 (1959 -
1960), pp. 1-26.
Hart, H.L.A.,
et al, (1968) Punishment and
Responsibility. Clarendon Press, Oxford.
Lessnoff, M.
(1971) Two Justifications of Punishment.
The Philosophical Quarterly, Vol. 21, No. 83 (April), pp. 141-148.
Philips, M.
(1986) The Justification of Punishment
and the Justification of Political Authority. Law and Philosophy,
Vol. 5, No. 3, Symposium in Memory of Chaim Perelman, pp. 393-416.
Sverdlik, S.
(1988) Punishment. Law and
Philosophy, Vol. 7, No. 2 (August), pp. 179-201.
End notes:
[2]In essence, there are four major
theories of criminal punishment i.e. retribution,
deterrence, rehabilitation, and incapacitations.
[4]Proportionality theory in punishment
and utilitarianism theory i.e. maximisation
of happiness and minimisation of unhappiness for the majority
[5] Utilitarian theories of
punishment: deterrence and rehabilitation. Utilitarianism arose in the
eighteenth century and was originally addressed to social policy as a basis for
penal reform and legislation.
[6]This is the conditional release of
a prisoner who has served a part of their sentence back into the community
under supervision and conditions that if violated will result in re-arrest.
[7]This is a period of time where an
offender lives under supervision and under a set of restrictions. Violations of
these restrictions could result in arrest.
[8] It occurs when an offense is
removed from an offender's criminal record. Minor offenses where rehabilitative
success is met are deemed in some cases to be expugnable in order for the
offender to move past their mistake and live a completely normal life
unrestricted by a past mistake.
[11] Denying them an opportunity to commit
crimes by isolating perpetrators from having contact with potential victims
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