What is punishment?
Punishment is the infliction of pain or loss upon a person for a transgression of a law or command. Punishment takes different forms which include: imprisonment, fines, capital punishment, flogging, and forced labour.
Historically, punishment was retributive, and its prosecution was left to victims and their families. Punishment was unproportionate to the character and gravity of crime. Eventually, the need for proportionate punishment arose in society, and that is where we see biblical statements like “an eye for an eye”. Later, the community took on the mantle of prescribing punishment and this later led to the codification of law. This led to the view that the community is wronged when an individual commits crime and punishment was a means of maintaining public order. The same system has permeated into today’s and that is why no one must “take the law into their hands”.
Theories and Objectives of Punishment
Theses have been written by philosophers, politicians, lawyers and religious leaders about punishment. Many reasons have been advanced as the basis of punishment and each reason is an attempt to show why punishment in proper or sometime, improper.
From the 18th Century, modern theories on punishment were developed. These theories were heavily influenced by the humanitarian movement in Europe which emphasized the dignity of a human being. This led to the reduction in the severity of punishment and prison systems were improved. Furthermore, this led to an interest in the psychology of crime and legislative bodies started to classify crime.
In the 19th and 20th centuries, crime was regarded as a product of social conditions and the justification of crime was limited to the extent to which it protected society and ensured moral correction of the criminal. Towards the end of the 20th century, this view was rejected by those who felt that offenders were not taking full responsibility of their crime and its consequences, that the deterrent effect of punishment was undermined, and that society has a right to retribution.
Isn’t it a moral requirement that a guilty person should make amends for the consequences of their action? Cesare Beccaria, the Italian criminologists insisted that even though punishment should be retributive, severity must be proportionate to gravity of the offence.
Theorists who justify punishment as a retributive measure argue that when a criminal is asked to make amends for his action which caused damage to the society, then such punishment serves as a moral standard for the society which binds everyone in the society.
More so, retributivists say that punishment serves society’s natural need for justice. It also helps to keep society in order by preventing victims of the crime and their families from seeking revenge. They also say that retributive punishment helps criminals to be discharged of their guilt and to make themselves acceptable to society after serving their punishment.
Utilitarian theories justify punishment because of it deterrence of criminal behaviour both on an individual and societal level; and consequent benefit to the society.
This approach aims at discouraging others from being like the offender. The theory also assumes that people are rational and that they will be calculative before they commit the crime for fear of being caught and punished. What this theory does not consider is that a criminal may be too calculative and will not be caught. Though the deterrence theory has not been validated beyond reproach, there is proof that some punishments have a strong deterrent effect. For example, laws designed to ensure road safety like the requirement for passenger to wear seat belts and not to drive under the influence of alcohol have a strong albeit temporary deterrent effect on society when coupled with mandatory penalties and a high degree of conviction.
Denunciation is another form of deterrence. A criminal convicted by a public court is shunned and denounced by the society. This public condemnation subjects the criminal to shame and criticism, a position which no other citizen would want to be subjected to, thus acting as a form of deterrence. The criticism of this theory is that though it deters crims, it is based on the potential penalties involved in committing crime and not necessarily on basis of good moral ground. Which means, if anyone in the society can find a way of not being the subject of criticism and shame, they will commit crime and live well in society.
A person to whom a punishment is directed is taught a lesson: not to repeat the behaviour. Whether this theory is effective can be determined by examining the subsequent behaviour of the criminal after conviction.
Punishment, makes an individual incapable of committing a crime. Historically, this incapacitation was done by execution or banishment. Today, incapacitation is done by imprisoning the offender. Incapacitation is also done in Sharia law where a thief’s hand is cut off to stop him or her from further sinning. Another form of incapacitation is chemical castration, where a sex offender is injected with hormonal drugs to reduce or eliminate their sex drive.
Modern times theorists say that punishment should be administered for rehabilitation purposes. Rehabilitation is the idea that an offender should be treated and trained and returned to society as a functioning and law-abiding member of the society. This theory was started in the 19th century and was considered a more humane way to deal with crime, unlike retribution or deterrence. The theory is an objective based theory and does not influence whether an offender receives a more lenient penalty than he or she would receive under a retributive or a deterrent philosophy.
Criminal law systems which encourage rehabilitation of offenders make provision for release on probation under the condition that the offender accepts that he or she did wrong and wishes to be a better person. This means that if the offender does not fulfil these conditions, he or she will spend longer time in incarceration.
Effectiveness of punishment
There is controversy on whether punishment is effective in reducing crime. Is there any relationship between crime rates and imprisonment rates? Does the existence of the death penalty reduce murder rates? Does severe punishment reduce high crime rates? There is no systematic proof that punishment is that effective.
New ways to enforce the criminal code, new ways of maintaining public order are much needed!
BY SAMALI BITALA
This article appears in our law newsletter Vol 3 Issue 3 of March 16th 2018. To receive The Deuteronomy in real time, click HERE