Sanctions and Theories of Punishment
Punishment is the sanction imposed on persons who commit crimes. It is sometimes considered an end in itself but nowadays it is usually considered a means to an end with the end being to protect society from the incidence of criminal behaviour. Different jurists have put forth a number of theories which deal with punishment and each one of them has a different focus. These theories include:
1. The Deterrent Theory
2. The Preventive Theory
3. The Retributive Theory
4. The Reformative Theory
1. The Deterrent Theory
The primary aim of this theory is, as its name suggests, deterring persons from committing crimes. It assumes that crimes are committed because:
1. Those who commit crimes derive benefits from doing so
2. The existence of a conflict of interest between those who commit crimes and society as a whole.
The deterrent theory seeks to ensure that the result of committing a crime is such that it causes ‘an ill bargain to the offender’ (in the words of Locke) and thus discourages the commission of crimes.
This theory has, however, been criticised because:
1. It leads to extremely harsh and inhuman punishments being inflicted on offenders, and can sometimes focus more on deterring those who have not committed a crime to refrain from doing so rather than on the offender who has committed an offence.
2. It tends to harden criminals instead of creating a respect for the law in them.
3. It had proven to be in effective.
4. It does not make any allowances for first time offenders, offences committed under extraordinary circumstances or offences which are merely technical.
The ultimate goal of this theory is to protect society from the commission of crimes.
2. The Preventive Theory
The preventive theory focuses on preventing an offender from repeating a crime by taking away his ability to do so. This is usually done by imprisoning the offender or otherwise disabling him.
The ultimate goal of this theory, like that of the deterrent theory, is to protect society from the commission of crimes.
3. The Retributive Theory
The retributive theory focuses on exacting revenge and its application could be seen in most primitive societies. It aims to restore the balance which the offender disturbed by inflicting suffering on him and is also closely connected with the desire to ensure that offenders do not profit from their crimes particularly at the expense of their victims.
In the Middle Ages, this theory, however, developed strong religious overtones – expiation made a guilty person innocent.
Critics of this theory, however, point out that retribution does nothing to remedy a wrong, it merely enhances it.
The retributive theory has no goal apart from inflicting a punishment on the offender. An eye for an eye, a tooth for a tooth, as the Old Testament says. While it makes sense to require an offender to compensate his victims to the extent possible, it is not easy to morally justify requiring an offender to restore an abstract balance for in doing so, we bestow on ourselves functions which are not ours – vengeance belongs to God.
Nonetheless, the theory is not completely without value:
1. If retribution can be inflicted only on an offender, by extension, no punishment can be inflicted on anyone who has not committed a crime.
2. If expiation makes a guilty person innocent, by extension, once he undergoes his punishment, he should be allowed to begin anew with a fresh slate.
4. The Reformative Theory
The Reformative Theory is one of the most widely accepted theories today. It focuses on the individual offender and aims to reform and, usually, rehabilitate him.
It is sensitive to first time offenders, those who have committed offences under extraordinary circumstances and those who have committed offences which are merely technical.
Salmond has criticised this theory though by pointing out that there are some incorrigible individuals in society who cannot be reformed.
Naturally, considering how different the foci of these theories are, none of them can be uncompromisingly followed.
1. The Deterrent Theory
2. The Preventive Theory
3. The Retributive Theory
4. The Reformative Theory
1. The Deterrent Theory
The primary aim of this theory is, as its name suggests, deterring persons from committing crimes. It assumes that crimes are committed because:
1. Those who commit crimes derive benefits from doing so
2. The existence of a conflict of interest between those who commit crimes and society as a whole.
The deterrent theory seeks to ensure that the result of committing a crime is such that it causes ‘an ill bargain to the offender’ (in the words of Locke) and thus discourages the commission of crimes.
This theory has, however, been criticised because:
1. It leads to extremely harsh and inhuman punishments being inflicted on offenders, and can sometimes focus more on deterring those who have not committed a crime to refrain from doing so rather than on the offender who has committed an offence.
2. It tends to harden criminals instead of creating a respect for the law in them.
3. It had proven to be in effective.
4. It does not make any allowances for first time offenders, offences committed under extraordinary circumstances or offences which are merely technical.
The ultimate goal of this theory is to protect society from the commission of crimes.
2. The Preventive Theory
The preventive theory focuses on preventing an offender from repeating a crime by taking away his ability to do so. This is usually done by imprisoning the offender or otherwise disabling him.
The ultimate goal of this theory, like that of the deterrent theory, is to protect society from the commission of crimes.
3. The Retributive Theory
The retributive theory focuses on exacting revenge and its application could be seen in most primitive societies. It aims to restore the balance which the offender disturbed by inflicting suffering on him and is also closely connected with the desire to ensure that offenders do not profit from their crimes particularly at the expense of their victims.
In the Middle Ages, this theory, however, developed strong religious overtones – expiation made a guilty person innocent.
Critics of this theory, however, point out that retribution does nothing to remedy a wrong, it merely enhances it.
The retributive theory has no goal apart from inflicting a punishment on the offender. An eye for an eye, a tooth for a tooth, as the Old Testament says. While it makes sense to require an offender to compensate his victims to the extent possible, it is not easy to morally justify requiring an offender to restore an abstract balance for in doing so, we bestow on ourselves functions which are not ours – vengeance belongs to God.
Nonetheless, the theory is not completely without value:
1. If retribution can be inflicted only on an offender, by extension, no punishment can be inflicted on anyone who has not committed a crime.
2. If expiation makes a guilty person innocent, by extension, once he undergoes his punishment, he should be allowed to begin anew with a fresh slate.
4. The Reformative Theory
The Reformative Theory is one of the most widely accepted theories today. It focuses on the individual offender and aims to reform and, usually, rehabilitate him.
It is sensitive to first time offenders, those who have committed offences under extraordinary circumstances and those who have committed offences which are merely technical.
Salmond has criticised this theory though by pointing out that there are some incorrigible individuals in society who cannot be reformed.
Naturally, considering how different the foci of these theories are, none of them can be uncompromisingly followed.
Labels: Jurisprudence
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