 Deterrent Theory

 Retributive Theory Theories of

 Preventive Theory
 Reformative Theory Punishment
Punishment: a conceptual understanding

 In study of politics as well as law the concept of Punishment remains a important aspect because punishing
the offender is a primary function of law-binding civil states.
 Punishment implies to imposition of an undesirable or unpleasant outcome upon a group or an individual,
meted out by an authority usually state authority i.e. Judiciary.
 The context of punishment vary in its nature.
 The Black Law Dictionary defines punishment as “ in criminal law, in pain, penalty, suffering, or a
confinement inflicted upon a person by the authority of the law & the judgement & sentence of court, for
some crime or offence committed by him, or for his omission of a duty enjoined by law”.
Justification for Punishment

 There are valid reasons for justification of punishment to offenders who are convicted
for an offence. They can be briefly stated as -:
1.Deterrence-:
 Punishment dissuades a person from future wrong doing by making punishment severe
enough so that the benefit or pleasure derived from the offence is outweighed by pain &
probability of punishment.
2. Incapacitation-:
 Incarceration has the effect of confining the prisoner & physically incapacitating him
from committing a crime.
 The most dangerous criminals may be sentenced to imprisonment for life or even a
sentence of death may be invoked for heinous & brutal crimes such as murder.
Contd.

3. Restoration -:
 For some minor offences punishment may be in the form of restoration such as
fines or payment of compensation to the victims of crimes or his/her relatives or
families.
4. Rehabilitation-:
 Some punishments are directed to reform the offender & ensure his rehabilitation
as a law-binding citizen. It aims at bringing about a change in offender’s attitude
to make him socially acceptable.
Penology

 It is a multidisciplinary subject that aims to study & evaluate the application of penal
sanctions to wrong-doers.
 It broadly explains the justification, characteristics & effectiveness of the punishment in its
various forms.
 Thus it is a systematic study of facets of punishment & its impact on crime, criminals &
society.
 It owes its origin to Cesare Beccaria, the propounded of the classical school of criminology;
who argued that justification of punishment must be to deter potential criminals & not
merely to punish the offender.
 Later the 19th century witnessed the emergence of various theories of punishment.
Theories of Punishment

 To punish criminals is a recognised function of all civilised states for centuries.

However with changing patterns in modern societies, the approach of penologists
has also undergone radical change.
 The four prevailing theories of punishment reflect age old traditionalism to recent
modernism.
 Although the line of demarcation exists between these theories but they cannot be
completely separated from each other.
Deterrent Theory

 The term deterrent means to abstain from doing an act.

 The main purpose of this theory is to deter or prevent the offenders from doing the offense or
repeating the same offense in future.
 This theory presupposes that the infliction of severe penalties or punishment on offenders with a view
to deterring them from committing crime or offense.
 The founder of this theory Jeremy Bentham, based his theory of determine on the principle of
hedonism (pleasure is the highest good & proper aim of human life) which said that a man would be
deterred from committing a crime if the punishment applied was swift, certain & severe.
 This theory considers punishment as an evil but is necessary to maintain order & security in the
society.
Contd.

 It also seeks create some kind of fear in the minds of others by providing adequate penalty & exemplary
punishment to offenders which dissuades them to engage in such activities.
 Thus, it is one of the effective policies which every penal system accepts despite its failure in practical
application.
 For instance, deterrence as a measure of punishment particularly fails in case of hardened criminals because
the severity of punishment hardly has an effect on them.
 Similarly, another demerit credited to this theory is that it fails to deter ordinary criminals because many
crimes are committed on the spur of the moment without prior design or intention.
 Further, futility of deterrent punishment is evident from the fact that quite a large number of hardened
criminals return to prison soon after their release.
 Thus, it has been argued that doctrine of deterrent punishment is closely associated with the primitive
theories of crime & criminal responsibility.
Retributive Theory

 This theory of punishment is based on the principle that ‘an eye for an eye, a tooth for a tooth, blood for a
blood’.
 This view does not support that punishment as an instrument for securing public welfare.
 The basic objective is to make offender realize the suffering of pain by subjecting him/her to the same kind
of pain as he/she had inflicted on the victim.
 Thus the pain inflicted on the offender by way of punishment was to outweigh the pleasure derived by him
from crime.
 The punishment is rather an expression of society’s disapprobation for offender’s criminal act.
Contd.

 Thus the punishment is an end in itself.

 The origin of the theory lies in the crude animal instinct of an individual or group . However, the modern
view does not favor this approach as neither wise nor desirable.
 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 Theory

 Preventive philosophy of crime is based on the proposition i.e., ‘not to avenge crime but to prevent it’.
 The theory is founded on the idea of preventing repetition of crime by disabling the offender through the
measures such as imprisonment, suspension of license, capital punishment etc.
 The idea is to keep the offender away from society i.e., while punishing a criminal the community protects
itself against anti-social acts which endanger social order in general or person or property of its members.
 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 & gives it humane touch
 it has been proved effective for discouraging anti-social conduct & a better alternative to deterrence or
retribution.
 It has been well advocated by Mill & Austin because of the humane nature towards the punishment &
offenders.
 As it suggests that prisonization is the best mode of crime prevention it has rather facilitated the
development of prison institutions.
 The imprisonment acts as both effective deterrent & useful preventive measure.
Reformative Theory

 This theory reflects the radical changes undergone by criminal sciences & criminology; it basically
represents a fresh approach to the problem of crime & criminals.
 The theory seeks to bring about a change in the attitude of offender in order to rehabilitate him/her as a law-
binding members of society.
 The punishment is viewed as a mean to reclaim the offender rather than torture or harass him/her.
 Thus, the theory condemns corporal punishments.
 It emphasizes on rehabilitation of inmates in peno-correctional institutions thus advocates humane treatment
to be provided to the offenders; highlighting individualized treatment model of punishment.
 Also, it seeks to train & adjust the offenders in post-release life in the society.
 The agencies like parole & probation are recommended as the best measures to reclaim the offenders to
society as reformed persons.
 It views punishment should not delve into the past but looking forward to future perspective.
 Thus, the supporters of this theory support prisonization not solely for the purpose of isolating criminals &
eliminating them but also to bring change in their mental outlook.
 Although the theory attributed a positive approach & has been effective in cases of juvenile delinquents,
women & the first offenders; however, its futility is well highlighted through its failure to bring any change
wrt hardened criminals.
 Another lacunae of the theory which can be stated is the lack of unpleasant element e.g., pain in the
punishment fails itself to be categorized as a punishment.