Theories of Punishment in Criminology

Meaning of Punishment:

The expression “Punishment” has been derived from the Latin term “punio” which means “pain” or “inflict retribution on an offender or for an offence.” 

Definition of Punishment:

Punishment has been defined as:

“Any penalty, confinement or fine inflicted upon a person by the authority of the law and the judgment and the sentence of the court, for some crime or offence committed by him, or for his omission of a duty enjoined by law.” Punishment also includes deprivation of property or some right but does not include a civil penalty redounding to the benefit of an individual, such as a forfeiture of interest. 

5 Theories of Punishment in Criminology: 

(1) Deterrent Theory: 

The deterrence theory of punishment is based on the idea that punishment is necessary to discourage people from committing crimes. According to this theory, the fear of punishment is what deters individuals from breaking the law, and the severity of the punishment should be proportional to the severity of the crime.

(a) Basic Idea of Deterrent Theory:

As considered by John Salmond, “Punishment is before all things deterrent and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.” A similar view is expressed by Locke stating that the commission of every offence should be made “a bad bargain for the offender.

(b) Significance of Deterrent Theory:

The main object of this theory is to appreciate a system to not only prevents the wrongdoer from doing a wrong a second time but also to make him an example to other persons who have criminal tendencies. The aim of punishment is not revenge but terror, An exemplary punishment should be given to the Criminal so that others may learn a lesson from him. As written by Paton “The deterrent theory emphasizes the necessity of protecting society, by so treating the prisoners that others will be deterred from breaking the law.” 

(c) Examples of Deterrent Theory:

Sentence of imprisonment and the death penalty are the instances of this theory. 

(d) Criticism of Deterrent Theory:

In modern times, this theory is greatly criticized. Baccaria states: “The more cruel punishments become, the more human minds hardened, adjusting themselves, like fluids, to the level of objects around them; and the ever living force of the passions brings it about that, after a hundred years of cruel punishments wheel frightens men only just as much as at first did the punishment of prison.”

It is also contended that the deterrent theory has proved ineffective in checking crimes. Even when there is a provision for very severe punishments in the penal law of the country, people continue to commit crimes. In the time of Queen Elizabeth, the punishment for pickpocketing was death but in spite of that, pickpockets were seen busy with their work among the crowds who gathered to watch the execution of the condemned pickpockets.

One of the main criticisms of the deterrence theory is that it relies on the assumption that people are rational actors who are capable of weighing the costs and benefits of their actions. However, research has shown that people's decision-making processes are often influenced by a variety of factors, including emotions, peer pressure, and mental illness, which may not be taken into account by the deterrence theory.

In addition, the effectiveness of deterrence as a deterrent to crime has been questioned by some scholars. They argue that punishment may not always be a sufficient deterrent, particularly in cases where the offender has a high level of impulsivity or where the potential rewards of committing a crime outweigh the potential costs.

Despite these criticisms, the deterrence theory has been influential in shaping criminal justice policy in many countries. For example, in the United States, mandatory minimum sentences for certain crimes were introduced as a way to deter people from committing those crimes.

(2) Reformatory Theory: 

The rehabilitation theory of punishment is based on the belief that offenders can be reformed and that the criminal justice system should aim to rehabilitate them. This theory is rooted in the idea that crime is caused by social and psychological factors, such as poverty, lack of education, and mental illness, and that addressing these underlying issues can prevent future crime.

(a) Basic Idea of Reformatory Theory:

The object of punishment according to this theory, should be to bring about the moral reforms of the offender. He may have committed a crime under circumstances which might never occur again. While awarding punishment, the judge should study the character and age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence, the object with which he committed the offence and other factors. The object of doing so is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits the circumstances.

Indeterminate sentence

Indeterminate sentence promotes rehabilitation through the use of unspecified sentences. Unspecific sentences indicate that the court has to appreciate circumstances indicative of reformation of a convict before deciding about the quantum of sentence. Discretionary punishments are flexible enough to take into account the needs of individual and society and also to realize the maximum general benefit to society and the reformation possibilities of the criminal. Ultimate goal of rehabilitation is to restore a convicted offender to a constructive place in society through some combination of treatment, education, and training.

(b) Significance of Reformatory Theory:

The advocates of this theory contend that even if a man commits a crime, he does not cease to be a human being. By a sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their characters. Even cruel hardened prisoners can be reformed and converted into helpful friends by good words and mild suggestions. Severe punishment can merely abase them. Hanging a criminal is merely an admission of the fact that human beings have failed to reform the erring citizen.

As quoted by Salmond:

“In the case of youth criminals, the chances of effective reformation are greater than in that of adults and the rightful importance of the reformative principle is, therefore, greater also. In orderly and law-abiding societies, concessions may be made in the interests of reformation which in more turbulent society would be fatal to the public welfare.” 

(c) Examples of Reformatory Theory:

The establishment of the court for juvenile offenders under the Code of Criminal Procedure is one of the instances of the application of this theory in Pakistan. In several progressive states, provision is made for a system of probation for the first offender. 

(d) Criticism of Reformatory Theory:

According to Salmond, “there are many incorrigible offenders who are beyond the reach of reformative influences and with whom crime is not a bad habit but an instinct and they must be left to their fate in despair. The theory of reformative punishment alone is not sufficient and there should be a compromise between the deterrent theory and the reformative theory the deterrent theory must have the least word. The primary and essential end of criminal justice is not deterrence and not reformation.

One of the main criticisms of the rehabilitation theory is that it is difficult to measure the success of rehabilitation programs. There is also debate among scholars about what constitutes "successful" rehabilitation and how it should be defined.

Another criticism of the rehabilitation theory is that it may not adequately address the harm caused by the crime to the victim and the community. Some argue that rehabilitation should not be the primary focus of the criminal justice system and that punishment should also be used to hold offenders accountable for their actions.

Despite these criticisms, rehabilitation programs, such as drug treatment courts, have been implemented in many countries as an alternative to traditional forms of punishment. These programs aim to address the underlying causes of crime and provide offenders with the support and resources they need to overcome those causes.

(3) Preventive Theory: 

(a) Basic Idea of preventive theory:

According to Paton, “the preventive theory concentrates on the prisoner but seeks to prevent him from offending in the future. Death penalty and exile serve the same purpose of disabling the offender.” 

(b) Significance of preventive theory:

Justice Holmes observes: “There can be no case in which the law-maker makes certain conduct criminal without showing a wish and purpose to prevent that conduct. Prevention would accordingly be seen to be the chief and any universal purpose of punishment. The law threatens certain things intending thereby giving you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.” 

(c) Instances of Preventive Punishment:

The offenders are prevented from repeating crimes by imprisonment, death, exile, forfeiture of office, or cancellation of licence, e.g., driving, or having a weapon. 

(4) Retributive Theory of Punishment: 

The retribution theory of punishment is based on the idea that punishment is justified as a means of avenging the harm caused by the crime. This theory is often referred to as the "eye for an eye" principle, and it suggests that punishment should be inflicted in proportion to the harm caused by the crime.

(a) Basic Idea of Retribution theory:

To quote John Salmond, the retributive purpose of punishment consists in avenging the wrong done by the criminal to society. Crime is not aimed merely at the sufferer. It is an affront to the community itself which should avenge the wrong and see that retribution overtakes the wrongdoer. The purpose of punishment is to gratify the desire for vengeance by making the criminal pay with his body. The retributive purpose of punishment is the elevation of the moral feelings of the community. The emotion of retributive indignation created by injustice is characteristic of all healthy communities.

(b) Significance of Retributory Punishment:

In primitive societies, the punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrongdoer. Early criminal law was based on the principle that all evils should be requited. To quote Sir James Stephen, “the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.” Punishment gratifies the feeling of pleasure experienced by individuals at the thought that the criminal has been brought to justice. That desire ought to be satisfied by inflicting a punishment in order to avoid the danger of private vengeance. 

(c) Instances of Retributory Punishment:

This theory is based on the principle of “an eye for an eye”, and “a tooth for a tooth.” In Pakistan, the punishment of Qisas provided under the Pakistan Penal Code is one of the glaring examples of this punishment. 

(d) Criticism of Retributory Theory:

Critics point out that punishment in itself is not a remedy for the mischief committed by the offender. Punishment in itself is not evil and can be justified only on the ground that is going to yield better results. Revenge is wild justice. Retribution is only a subsiding purpose served by punishment. 

One of the main criticisms of the retribution theory is that it relies on the assumption that punishment will provide emotional satisfaction for the victim and the community. However, research has shown that punishment does not always provide this satisfaction and may even exacerbate feelings of anger and resentment.

Another criticism of the retribution theory is that it does not take into account the rehabilitative potential of the offender. Some argue that punishment should be focused on rehabilitating offenders and helping them become productive members of society, rather than on seeking retribution.

Despite these criticisms, the retribution theory has been influential in shaping criminal justice policy in many countries.

(5) Theory of Restoration or Compensation: 

The restoration or  Compensation theory of punishment is based on the idea that the primary purpose of punishment is to repair the harm caused by the crime and to restore the balance of the community. This theory emphasizes the importance of restorative justice practices, such as victim-offender mediation and community service, which aim to bring the offender and the victim together to discuss the harm caused by the crime and to find ways to repair that harm.

(a) Basic Idea:

According to this theory, the object of punishment is not merely to prevent further crimes but also to compensate the victim of the crime. The contention is that the mainspring of criminality is agreed and if the offender is made to return the ill-gotten benefits of the crime, the spring of criminality would dry up.

(b) Instances of Compensatory Punishment:

The punishment of fine, Diyat, Arsh and Daman provided under the Pakistan Penal Code is the practical example of this theory. 

(c) Criticism of Compensatory Punishment:

Critics of this theory point out that it tends to oversimplify the motives of the crime. The motive of a crime is not always economic. Offences against the state, justice, religion, marriage and even against persons may not always be actuated by economic motives. There may Be other motives involved in the case. In those cases, the theory of compensation may be neither workable nor effective. Even in the case of offences attached by such motives, the economic position of the poor offender may be such that compensation may not be available. If the offender is rich person, the payment of any amount may be no punishment for him.

One of the main criticisms of the restoration theory is that it may not be appropriate for all crimes, particularly those that involve severe harm or violence. Some argue that more serious crimes require more severe forms of punishment in order to hold the offender accountable and to protect the community.

Another criticism of the restoration theory is that it may not adequately address issues of power imbalances and structural injustice. Some argue that restorative justice practices may not be effective in cases where the offender has a significant amount of power or privilege compared to the victim.

Despite these criticisms, the restoration theory has gained increasing attention and support in recent years, with many countries and jurisdictions implementing restorative justice programs as an alternative to traditional forms of punishment.

Punishment Must Be Balanced

Sentence must be weighed in golden scale and should be properly balanced to deter the rest of society from the commission of crime without being unnecessarily harsh. To award Punishment was the primary function of all the social States. The crucial problem was whether a criminal was considered by society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refectory child to be disciplined or should be regarded as nothing of those things, but simply be punished to show others that anti-social conduct attracts heavy Punishment.

The problem of crime, criminals, and awarding Punishment required the attention of Criminologists and Penologists all around the social world,, but there was a dearth of such individuals or institutions, who could give opinions in Criminology and Penology based on social conditions and provide guidance in respect of Punishment. The court, in the circumstances; could not resolve the issue of awarding sentences blindly or without taking note of Theories of Punishment and the background of offenders. Such duty fell on the superior courts to fill in the vacuum and the courts should do justice keeping in view all the circumstances and backgrounds of the of fenders.

Punishment awarded should neither exceed a ceiling equal to a level just deserved by the of fender for the of fence nor far below a floor level necessary to protect the public from further serious crimes; and to show that the gravity of of fence was deprecated.

Where the case of the prosecution was proved beyond any doubt, then it was the legal duty of the court to award Punishment to an offender to make the evil-doer an example and warning for the like-minded persons. The court was bound to do complete justice with both the parties.

Whenever people failed to secure justice from the court of law then they would resort to take law in their own hands to settle their matters themselves. Such a situation was very alarming. While awarding a sentence, the court should keep in view all such considerations.

Punishment in Islamic Jurisprudence

The Islamic theory of punishment derives from the Holy Quran and the Hadith. On the whole, the Holy Quran has about 200 verses dealing with legal issues. The main goal of Islamic Penology is to secure human welfare, maintain peace and to establish a righteous society. It is very clearly enunciated in the Holy Quran that Allah has sent His messengers and the Holy Quran, so that men can establish justice. It is categorically expressed as: "God commands justice, righteousness, and spending on ones relatives, and prohibits licentiousness, wrongdoing, and injustice". The discretionary punishments are flexible enough to take into account the needs of individual and society and also to realize the maximum general benefit to society and the reformation possibilities of the criminal. Starting from exhortations and reprimands to flogging, to fines, and to imprisonment, Islamic Law has defined different types of discretionary punishments some of which are:

• a)    Admonition (Al-Waz)
• b)    Reprimand ( Al-Tawbikh)
• c)    Threat (Al-Tahdid)
• d)    Boycott (Al-Hajr)
• e)    Public Disclosure (Al-Tashhir)
• f)     Fines and seizure (Al-Gharamah wal Musadarah)
• g)    Imprisonment (Al-Habs)
• h)    Banishment (Al-Nafy)

English Law on Purpose of Punishment

Section 142 of the Criminal Justice Act 2003 sets out five purposes of sentencing, to which any court dealing with an offender must have regard. Section 142 of the Criminal Justice Act 2003 reads as under:-

Purposes of sentencing:

(1)   Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:

• (a)   the punishment of offenders,
• (b)   the reduction of crime (including its reduction by deterrence),
• (c)   the reform and rehabilitation of offenders,
• (d)   the protection of the public, and
• (e)   the making of reparation by offenders to persons affected by their offences."

This is not intended to be a hierarchical order. The Sentencing Council for England and Wales, created by Coroners and Justice Act 2009, has stated that "the Criminal Justice Act 2003 does not indicate that any one purpose should be treated as more or less important than another. In an individual case, any or all of the purposes may be relevant to a certain degree and it will be for the judge or magistrate to decide how they apply.

Conclusion: 

In conclusion, the theories of punishment in criminal justice provide different justifications for the use of punishment and have been applied in various legal systems around the world. While each theory has its own set of assumptions, criticisms, and examples, they all play a role in shaping our understanding of punishment and its role in the criminal justice system. Ultimately, the choice of which theory to apply in a given case will depend on a variety of factors, including the severity of the crime, the offender's background and circumstances, and the goals of the criminal justice system.

A perfect system of criminal justice cannot be based on anyone's theory of punishment. Every theory has its own merits and every effort must be made to take the good points of all. The deterrent aspect of punishment must not be ignored. Likewise, the reformative aspect must be given its due place. The personality of the offender is as important as his actions and we must not divorce his actions from his personality. The offender is not merely a criminal to be punished. He is also a patient to be treated. Punishment must be in proportion to the gravity of the crime. It must be small for minor crimes and heavy for major crimes.