THEORIES OF PUNISHMENT

Lecture- 13
• Punishment is defined as suffering, loss, pain, or any other penalty that is
inflicted on a person or group for committing a mistake, crime, immoral act,
or any other unacceptable behavior by the concerned authority to attain one
or more of several goals, such as, deterrence, incapacitation, rehabilitation,
retribution, and restitution.
• Punishments differ in their types, purposes, and degree of severity, and
may include sanctions such as reprimands (formal rebuke), deprivations of
privileges or liberty, fines, imprisonment, ostracism, the infliction of pain,
incapacitation such as amputation, and the death penalty.
• Some of the major types of criminal punishment are incapacitation,
deterrence, retribution, rehabilitation, restoration, and restitution.
• Incapacitation prevents crime by removing a defendant from society.
• Deterrence aims to prevent future crime and can focus on specific deterrence or
general deterrence depending on whether it tries to make an individual or
members of the public become less likely to commit a similar crime in the future.
• Rehabilitation prevents crime by altering a defendant's behavior.
• Retribution prevents crime by removing the desire for personal avengement
through giving victims or society a feeling of avengement or vengeance.
• Restoration is the process of bringing an object back to its original state and
prevents crimes by calls for the offender to make direct amends to the victim of
their crime, as well as the community where the crime occurred.
• Restitution prevents crime by making the defendant pay financial compensations
to the victims for their losses.
• To describe an action as punishment, the following conditions are commonly
considered necessary:
• (1) Punishment is a response to an offense. Some offenses go unpunished or
even undetected.
• (2) It involves three parties, viz., (a) the offender (or, defendant) – a person who
has carried out the illegal or immoral act, (b) the victim (or, plaintiff) - a person
who is harmed, injured, or killed as a result of a crime, and (c) the authority who
inflicts the penalty on the criminal.
• (3) It involves some loss or unpleasant outcome to the supposed offender.
• (4) It is imposed by an authority (single or multiple) and not by the victim or any
other party.
• (5) The party (human or other animal) to whom the punishment is imposed should
be deemed responsible for the offense, because it was an act committed either
intentionally or negligently.
• In ethics we are mainly concerned with the justification or purpose
of punishment, that is, considering under what circumstances, if any,
the infliction of punishment is morally right.
• Regarding the justification of punishment, there are several basic or
important theories, viz., the deterrent (or, preventive) theory of
punishment, the reformative (or, educative) theory of punishment,
and the retributive theory of punishment.
• The Deterrent (or, Preventive) Theory of Punishment:

• This is a forward-looking theory of punishment, according to which,

punishments are justified to the extent that they bring about future good
results. According to the deterrent theory, the purpose of punishing anyone
who has done wrong is to deter or prevent people from committing the
same offense. This theory is supported by utilitarianism.
• The aim of punishment is to project it as an ‘example’ to other potential
criminals so that they would not commit the same offense. It was aptly
stated by a judge in the following way- “You are to be punished, not
because you have stolen a sheep, but in order that others may not steal
sheep.”
• A distinction can be made between general deterrence and specific
deterrence. General deterrence refers to the effects of legal
punishment on the general public (potential offenders), and specific
deterrence refers to the effects of legal punishment on those
individuals who actually undergo the punishment.
• The deterrent theory justifies capital punishment as an extreme form
of punishment because of its deterrent effect on those who are likely to
commit a serious crime.
• An objection often raised against this theory of punishment is that it allows
the possibility of treating the offender not as an end, but merely as a
means for the benefit of others.
• This is not quite correct that the offender is being treated merely as means
to the good of others because any punishment, except capital punishment, is
likely to have more deterrent effect on the offender himself than on any one
else.
• The real weakness of the deterrent theory is that if the real purpose of
punishment is only to deter people from wrong-doing, it does not really
matter whether the person punished is really guilty or not.
• A problem for the deterrent theory as a forward-looking theory is that the
punishments recommended may not be “proportional” to the crime.
• The Reformative (or, Educative) Theory of Punishment:
• Like the deterrent theory, the reformative (or, educative, or,
rehabilitative) theory of punishment is a forward-looking theory of
punishment. This theory is supported by criminologists.
• But unlike the deterrent theory, the reformative theory directly focuses
not on deterring or reducing crime, but on educating or reforming the
criminals themselves so that they are transformed into normal people
who are less likely to commit crimes.
• Merits of the Reformative Theory:
• Though the effectiveness of education and forgiveness in dealing with
offenders is often undeniable, education or character building itself is
not punishment.
• This theory has an initial appeal because of its harmony with the
humanitarian sentiments of people.
• This theory does not involve treating a person as a means. An offender
is punished for his own good, and not merely for the benefit of others.
• Demerits of the Reformative Theory:
• The reformative theory of punishment takes an offender centric approach
which is unjust to the victim in some cases. In its attempt to protect the
rights of the prisoners, the courts may unconsciously violate the rights of
the victim.
• It is evident that capital punishment cannot be justified on the reformative
theory.
• An inherent weakness of the reformative theory is that it is incompatible
with our intuition that the habitual or hardened offenders who have a
strong tendency to commit crime are not amenable to correction through
education and hence should be punished as per the preventive theory.
• The Retributive Theory of Punishment:
• The retributive theory of punishment is based on Lex Talionis or
the "law of retaliation“ and expressed in the maxim ‘life for
life, eye for eye, tooth for tooth’ holds that punishment should
be coextensive with, i.e., proportionate to, offense, i.e.,
criminal's moral desert.
• The retributive theory is a backward-looking theory of
punishment as it tries to find out the fact about how the crime
was committed and is concerned with “paying back” for the
crime. This theory is supported by deontologists.
• Aristotle, Kant, and Bradley supported the retributive theory.
• Aristotle regards punishment as the negative reward earned for deliberately
breaking the moral law.
• In The Metaphysics of Morals, Immanuel Kant argued that criminal punishment
"can never be inflicted merely as a means to promote some other good for the
criminal himself or for civil society. It must be inflicted upon him only because
he has committed a crime ... in proportion to his inner wickedness.
• Bradley also holds that punishment is nothing but retribution for the breach of
a moral law and must be inflicted for the sake of justice.
• Considering the pros and cons of the three theories, it is evident that the
retributive theory is free from the limitations of the other two theories and
does not contradict our moral intuition about justice. Hence, it may be
regarded as the the best theory of punishment.
• A Theory of Just Execution:
• (I) Steffen’s natural law assumption is that life is a basic good that should be preserved.

• (II) Steffen’s nine criteria for the justification of the death penalty are:
• (1) The execution power must be legitimately authorized.
• (2) Just cause for the use of the death penalty must be established.
• (3) The motivation for applying lethal punishment must be justice, not vengeance.
• (4) Executions must be administered fairly, without accidental features such as race,
religion, class, or sex affecting administration of the death penalty.
• (5) The death penalty is to be used as an expression of cherished values, and it must not
subvert the goods of life but promote and advance the value of life.
• (6) Executions ought not to be cruel.
• (7) Execution ought to be a last resort, with no other response to the
offender except execution adequately serving the interests of justice.
• (8) Execution ought to restore a value equilibrium distorted and upset by
the wrongdoing committed by the person on whom execution is visited.
• (9) Execution should be a response proportionate to the offense
committed.

• (III) Steffen concludes that current execution practice does not live up to
the standards of the theory because no execution in America as part of the
execution system can possibly meet all of the nine criteria of a just
execution.
• Unified theory:
• A unified theory of punishment brings together multiple
penal (i.e., punitive) purposes—such as retribution,
deterrence and rehabilitation—in a single, coherent
framework. Instead of punishment requiring us to choose
between retribution, deterrence and rehabilitation, unified
theorists argue that they work together as part of some wider
goal such as the protection of rights.