Retributivist Theories Of Punishment Essay

3 Important “Theories of Punishment” (1. Retributive, 2.  Preventive, 3. Reformative are briefly described below:

Of the various theories of punishment the following there are the most important and typical Retributive, preventive and reformative.

1. Retributive Theory:

According to the retributive theory the purpose of punishment is to seek revenge. It is the theory described in the Old Testament as an eye for an eye and a tooth for a tooth.

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According to the German philosopher Kant, the offender should not be punished for the reason that it is the means to his or another’s benefit but for the simple reason that he has committed a crime

A court of law repays to one only that which he has acquired. He has done crime and it is logical that the reward of his crime, the equivalent of his destructive value, be given to him.

The punishment which the society confers upon him does not deprive him of his right but gives to him that which he has earned and deserves. According to Hegel and Aristotle, punishment is the negative reward of the criminal, who acquires it by infringing the moral law. It is his award which he must receive.

For this reason, when some offenders escape with lighter punishment than the merit of their crimes, they try to reap the reward of their misdeeds by penance.

According to Bradley, “We pay the penalty because we owe it and for no other reason; and if punishment is inflicted for any other reason.

Whatsoever than because it is merited by wrong, it is a gross immorality, a crying injustice; punishment is inflicted for the sake of punishment” In this view punishment is the reward of the violation of moral law.

In the words of Sir James Stephen,

“Criminal procedure is the resentment what marriage is to affection.”

Thus, the purpose of punishment is to vindicate the superiority of moral law.

By punishing the person who has perpetrated the crime the authority of moral law is vindicated Bosanquet, has enumerated two features of this theory:

  1. In it personal revenge and punishment coalesce.
  2. It has been recognized in this theory that the punishment is quantitatively equal to the crime.

Both of these features are defective. Mill and Leslie Stephen have laid great emphasis upon the element of revenge in punishment. The retributive theory has two forms-rigorist and liberal.

According to the rigorist retributive theory the criminal should be punished severely for a serious crime. The liberal retributive theory also includes the consideration of the circumstances of the crime.

But even the liberal form of the retributive theory is not satisfactory. It is not essential that the criminal will, after having been punished, realize his mistake in violating the moral law and feel remorse for his misdemeanor.

Mackenzie has said,

“If the aim of punishment is to vindicate the authority of the law, this will be partly done in so far as the offender is reformed and in so far as similar acts are prevented. And indeed neither reformation nor prevention is likely to be effected by punishment unless it is recognized that the punishment is vindication of the law”

But this can be possible today when the criminal himself decides the punishment and is prepared to repent for his wrong violation.

It cannot be expected, when the punishment has been administered by the state or any foreign agency that the criminal will repent. In practice it has been seen that a criminal becomes even worse after punishment.

Actually, too, the retributive theory is not practical; it does not remove the cause of crime. Prevention of crimes or transformation of the criminal can be achieved only by preventing crimes or transforming the criminal and not by punishment.

John Dewey has said quite correctly that,

“We are not relieved of the responsibility for the consequences of our procedure by the fact that the offender is guilty.”

It is more important to remove those economic, social, mental and physical causes which spur on the ordinary and the more numerous type of offender.

Though it is not herein implied that punishment is unnecessary in every circumstance because it sometimes does become unavoidably necessary to mete out punishment

2. Preventive Theory:

According to the Preventive theory the aim behind punishment is to set an example to others and to prevent them from criminal tendencies. In this way, the object of punishment is prevention.

This theory is expressed by the judge’s formula, “You are not punished for stealing sheep, but in order that sheep may not be stolen.” This theory does not invalidate even capital punishment because though there is no question of improvement hi the criminal, the other people derive a lesson not to indulge in homicide.

Criticism:

The major defect of this theory is that it uses the offender as means and not as end. This does not affect any improvement in the culprit. He is made the means of the improvement of others.

This theory is incorrect from the practical view-point. Actually everyone cannot become a criminal. People, who know how to respect laws, are in no need of any such exemplary exhibitions.

No the other hand, those who have criminal tendencies can be prevented from crime by necessary preventions and the removal of conditions constituting the breeding ground of crime. To punish a man in order to convey a lesson to others is improper and in human. This theory is more defective than even the Retributive theory.

3. Reformative Theory:

According to the reformative theory, the aim of punishment is the improvement of the offender himself. The modem age seems generally to favour and apply this theory.

In this theory, the behaviour directed at the criminal shows him the consideration due to an individual and not conduct analogous to treatment of object and means. An offender is punishment for his own benefit. This theory concurs with the modern humanitarian trend in thought. This theory has been supported from many viewpoints. Some of the major ones are the following:

I. Criminal Anthropology:

The modern criminal anthropology propounds that crime is a disease a pathological state or the state of inherited by acquired degeneration. Thus, it is necessary to treat a criminal instead of punishing him.

Hospitals, lunatic asylums, and welfare homes are better adapted to the execution of projects to decrease crime than prisons. Crime is not the result of a willful violation of moral law. The most usual causes of crime are mental or physical defects. For example, kleptomania forces the patient to steal.

Criticism:

The major shortcoming of this theory of criminal anthropology is that it assumes the causes of a limited number of crimes to be the causes of all crimes. If some person steals due to kleptomania he should undoubtedly be interned in a hospital rather than jail but the number of kleptomaniacs is negligible among the number of thieves.

All crimes cannot be attributed to diseased conditions. Criminals who resort to illegal means due to mental or physical deformities form only a very small minority in the realm of criminals. Thus people who commit crimes due to reasons other than these should be curbed by other methods.

II. Criminal Sociology:

Criminal sociology emphasizes the responsibility of social circumstances for crime. Thus it is more efficacious to induce improvements in social and economic conditions, to remove inequalities and immoralities, than to punish the criminal.

Crimes can be stopped not by punishment but by the organization of human society cm the basis of justice and equality.

Criticism:

The major shortcoming of this theory of criminal anthropology is that it assumes the causes of a limited number of crimes to be the causes of all crimes if some person steals due to kleptomania he should undoubtedly be interned in a hospital rather than jail but the number of kleptomaniacs is negligible among the number of thieves.

All crimes cannot be attributed to diseased conditions. Criminals who resort to illegal means due to mental or physical deformities form only a vary small minority in the realm of criminals. Thus people who commit crimes due to reasons other than these should be curbed by other methods.

III. Psychoanalysis:

Psychoanalysis joins hands with criminal anthropology and sociology in supporting the reformative theory according to Freud and his followers, crimes are caused by repressed complexes, and tendencies of sex and jealousy caused by desires and frustrated sexual passions.

Thus, education and psychoanalytic treatment is needed for preventing crimes instead of punishment. Crime is mental or neural disease which can be eliminated by searching out repressed unconscious complexes and transporting them, to the conscious level, finding their causes and effecting their sublimation through means acceptable to society.

Criticism:

The psychoanalytic suggestions too hold true only in relation to particular criminals. Actually, this opinion is not universally true as was the case with criminal anthropology and criminal sociology.

Reformative Theory is Superior to Others:

The reformative theory is effective in all such conditions in which the criminal commits the crime in ignorance and compelled by circumstances or where this criminal tendency is attributable to a mental or physical defect.

But the reform of a criminal who willfully violates moral laws is not so easy a pro-position. Thus, for some criminals it becomes unavoidable to arrange for punishment.

It can be said that the reformative theory is the most superior among the theories of punishment because it is compatible with the modern humanitarian ideals and seeks to eliminate the causes of and prevent crimes but it cannot be applied to all crimes. Some crimes are more conducive to the preventive theory.

Governments have several theories to support the use of punishment to maintain order in society.

Theories of punishment can be divided into two general philosophies: utilitarian and retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or "deter," future wrongdoing. The retributive theory seeks to punish offenders because they deserve to be punished.

Under the utilitarian philosophy, laws should be used to maximize the happiness of society. Because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Utilitarians understand that a crime-free society does not exist, but they endeavor to inflict only as much punishment as is required to prevent future crimes.

The utilitarian theory is "consequentialist" in nature. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. In other words, punishment should not be unlimited. One illustration of consequentialism in punishment is the release of a prison inmate suffering from a debilitating illness. If the prisoner's death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes.

Under the utilitarian philosophy, laws that specify punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. The punishment serves as an example to the rest of society, and it puts others on notice that criminal behavior will be punished.

Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behavior.

Rehabilitation is another utilitarian rationale for punishment. The goal of rehabilitation is to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market.

The counterpart to the utilitarian theory of punishment is the retributive theory. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance.

The retributive theory focuses on the crime itself as the reason for imposing punishment. Where the utilitarian theory looks forward by basing punishment on social benefits, the retributive theory looks backward at the transgression as the basis for punishment.

According to the retributivist, human beings have free will and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. However, a person who makes a conscious choice to upset the balance of society should be punished.

There are different moral bases for retribution. To many retributivists, punishment is justified as a form of vengeance: wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in his neighbour … it shall be done to him, fracture for fracture, eye for eye, tooth for tooth…."

To other theorists, retribution against a wrongdoer is justified to protect the legitimate rights of both society and the offender. Society shows its respect for the free will of the wrongdoer through punishment. Punishment shows respect for the wrongdoer because it allows an offender to pay the debt to society and then return to society, theoretically free of guilt and stigma.

A third major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of societal condemnation. The denunciation theory is a hybrid of UTILITARIANISM and retribution. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. Denunciation is likewise retributive because it promotes the idea that offenders deserve to be punished.

The U.S. conception of punishment is a combination of the utilitarian, retributive, and denunciation theories. The most widely accepted rationale for punishment in the United States is retribution. If convicted, the sentence a defendant receives is always, at least in part, a form of retribution.

A sentence may, however, combine utilitarian ideals with retribution. For example, a defendant sentenced to prison for several years is sent there to quench the public's thirst for vengeance. At the same time, educational programs inside the prison reflect the utilitarian goal of rehabilitation.

Our legal system shows its adherence to utilitarian ideals in the creation of systems such as pretrial diversion programs, PROBATION, and PAROLE. These systems seek to limit punishment to the extent necessary to protect society. The utilitarian philosophy is also reflected in the assignment of different punishments for different crimes and in the notion that the amount of punishment a convicted criminal receives should be in proportion to the harm caused by the crime. For example, murder calls for imprisonment or even the death penalty. A simple ASSAULT AND BATTERY with no serious injuries is usually punished with a short jail sentence or probation and a fine.

Judges generally have the discretion to fashion punishment according to the needs of both society and the defendant. This is an expression of utilitarian tenets. However, judicial discretion in sentencing is limited. In some cases statutes require judges to impose mandatory minimum prison sentences as punishment, and these laws stand as a monument to the retributive theory.

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