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Justification for Punishment in Criminal Law

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EBRIMA SOWE, PELUMI AKINTUNDE, ET AL. Justification for Punishment in Criminal Law

JUSTIFICATION FOR PUNISHMENT IN CRIMINAL LAW

Ebrima Sowe, Pelumi Akintunde, Et al.

Abstract

T
he notion of punishment as the main aim of Criminal Justice in Nigeria has been queried and criticised by scholars
who believe that restorative justice pays more attention to the needs of the society, including the victim and the
defendant, as well as human dignity in general.

This paper revisits the position that a punishment is justified depending on the type of punishment applied on a relevant case
in criminal liability. Thus, justification for a prescribed punishment lies on the appropriateness of a sentence for a crime by a
judge or a person in the position of legal authority.

In addressing such dilemma, this academic paper presents the various theories and justification for punishment from Nigerian
viewpoint.

It concludes with a synopsis of the situations where punishment is unjustified.

Keywords: Nigerian Criminal Law, Justified Punishment, Unjustified punishment, retribution, deterrence, reformative,
incapacitation.

imprisonment, a death penalty or compensation, deprives the

Introduction individual of his liberty and serves the purpose for which that
punishment is meant. The Court is always informed by

P unishment and the justification for punishing

crimes in light of the right to dignity of an
individual, as well as his or her rationality and
responsibility, has been a subject of debate among
differing punishment objectives before imposing a sentence
upon the accused.

Such objectives and purposes of punishment can be

philosophers, political leaders and lawyers for centuries1.
This is further complicated by the various distinctions
between different classes of criminals. Various theories of
punishment have been developed, each of which attempts to
justify the practice in some form and to state its proper
objectives. Offences are controlled by the threat of
punishment. This is so much so that the definition of a crime
is not complete without punishment, as no one can be
charged for an offence, if there is no prescribed punishment
for that offence. Hence, punishment can be justified as the
purpose of a crime, offence or omission 2.
Punishment is always against the conduct of an offender and
not against the person in his individual capacity, hence
justified. Where one is punished by way of fine,
categorized into four main theories, namely: deterrence,
incapacitation, retribution and rehabilitation/reformation 3.
These principles ought to guide decisions about appropriate
kinds and justifications of punishments.
The dominant justifications for punishment are provided by
the retributive Utilitarian theory.
The four (4) theories that justify punishment are:
 Deterrence
 Rehabilitation
 Incapacitation

1
Britannica “Justification of Punishment”  Retribution / Legalized Revenge
https://www.britannica.com/topic/punishment
2 3
Section 36 (12) of the 1999 Constitution of the Federal Clarkson and Keating in “Criminal Law Text and Materials”
Republic of Nigeria (Sweet & Maxwell, 2003)

Page 1 of 6
EBRIMA SOWE, PELUMI AKINTUNDE, ET AL.
1. DETERRENCE
T
his justifies punishments as an aim to set an example
in punishing convicted criminals to deter others.
According to the 18th Century Italian philosopher,
Cesare Beccaria; for deterrence to work, the punishment
should be severe (unpleasant); certain: the risk of getting
caught should be high; and the punishment should also be of
high celerity (executed without delay). These three (3)
conditions are still applicable today. They are based on the
idea that, Humans are rational and hedonistic beings 4. These
conditions make them think of the advantages of committing
a crime against the inconvenience of getting caught.
Deterrence could be general or specific. Specific deterrence
aims to discourage crime by punishing offenders for their
crime to convey to them that, crime does not pay, while
general deterrence seeks to dissuade potential offenders by
the threat of anticipated punishment from engaging in an
unlawful conduct. This was the reasoning of the Supreme
Court of New Zealand in the case of R v. Radich5 when the
Apex Court stated at 87 that:
“… one of the main purposes of punishment … is to protect
the public from the commission of such crimes by making it
clear to the offender and to other persons with similar
impulses that, if they yield to them, they will meet (sic) with
severe punishment.”6
Hence, deterrence has been the main purpose of punishment
and still continues to be so. A practical example of general
deterrence in Nigeria is the arresting and killing of
Bartholomew Owoh and two others during Buhari/Idiagbon
military regime for drug-related Offences, as well as the
introduction of the Robbery and Firearms (Special
Provisions) Act7 which mandates the killing of convicted
armed robbers (who wounds or uses any personal violence
against any person)8 by hanging the offender by the neck till
s/he die or by causing such offender to suffer dead by firing
4
Deterrence theory
5
1954 NZLR 86 (more recently in R v AEM [2002] NSWCCA)
6 10
https://www.judcom.nsw.gov.au/publications/benchbks/se
ntencing/purposes_of_sentencing.html
7
Cap. 398 L.F.N 1990
8 restorative justice.
Section 1 (2)(b) of the Robbery and Firearms (Special
Provisions) Act of Nigeria
Page 2 of 6
Justification for Punishment in Criminal Law
squad as the Governor may so direct9. However, evidence
has shown that severe criminal punishment has not reduced
the crime rate in Nigeria; hence, there is need to point at a
different approach for solution. The distinction between
general and specific deterrence is that the latter reflects on
the future behaviour of the individual being punished to deter
him from committing subsequent criminal act. The above
position of law was supported by the Supreme Court in the
case of Onuoha Kalu v. The State10.
The Supreme Court held that death sentence is still the
punishment for armed robbery in Nigeria so as to serve as a
specific deterrence to others who may go into armed robbery.
The most damaging criticism of deterrence theory is that it
has not reduced the incidence of crime in the society.
However, whether the impact of deterrence theory is felt in
the society or not, it justifies punishments in Nigeria11.
In some cases, deterrence as a mode of punishment becomes
inevitable as could be seen in the case of The State v. Bolivia
Osigbemhe & Anor12 where the accused is convicted for rape
and stealing, he pleaded for leniency saying that his
dependents would suffer if he went to prison. His counsel
also informed the court that he was a first offender and asked
for mercy and option of fine.
The court stated as follows:
“The behaviour of the accused is outrageous and disgraceful
and should be seriously deprecated by any decent society. I
will be failing in my duty if the accused is not meant to suffer
for his barbaric act. It is obvious that his insatiable appetite
for sex made him to commit the offence.”
In this particular case, specific deterrence must apply
because the use of gun, the infliction of injuries when the
girls jumped out of the van, deprivation of liberty for a
considerable time, the breach of trust after assuring the girls
of their safety and the fact that series of rapes were involved
demanded that the convict be properly punished as a
deterrent to others who may attempt such crime.
9
Section 1 (3) of the Robbery and Firearms (Special
Provisions) Act of Nigeria
(1998) LPELR - SC 24/1996
11
This position is likely to change given the promulgation of
the Administration of Criminal Justice Act in 2015 which
diverts the main aim of criminal justice from punishment to
12
HAU/10C79 (Unreported)
EBRIMA SOWE, PELUMI AKINTUNDE, ET AL.
2. REHABILITATION
T
he aim of rehabilitation is to try to reform the
offender so that he/ she can resume a normal role in
society. Advocates of this justification believe that a
period of confinement would produce remorse and would
make offenders repent. This justification is generally
favoured by the public with hopes of changing the character
of the criminal. Rehabilitation aims at improving the
offender‟s character so that the offender would be less
inclined to commit crime (even when an opportunity arises.)
Arguably, a downside of this justification is that it has shown
to be based on faulty assumption that „crime is a disease‟ and
that an offender can be cured of it.
This justification stems from the utilitarian theory of
punishment. And as such it answers the questions of: Why do
we punish? How should we punish? And what are the limits
of punishment?
Rehabilitation means reforming the personality and
behaviour of convicted offenders through well-established
educational and or therapeutic treatment to ensure the
individual returns back to the society a complete, self-
supporting and accepted member of the society. And so,
punishments to shape the future behaviour of the criminal are
considered rehabilitation. According to Packer as cited in
Dambazau (2007:310),
The rehabilitation theory teaches us that “... we must treat
each offender as an individual whose special needs and
problems must be known ... in order to enable us deal
effectively with him”. And so it is an issue of how amenable
to treatment is a criminal not how dangerous he is.
Utilitarians favour rehabilitation because it prevents one
more person from becoming a criminal and transforms them
into productive law-abiding citizens. An example of
rehabilitation is where a violent offender is taken to an anger
management program during his sentence. Rehabilitation
also encompasses educational programs in the prison to
stimulate both their mental and emotional development.
These programs help the inmates to overcome whatever
barrier that led them to committing the crimes.
Issues such as drug addiction, drunk driving, illiteracy and
dysfunctional mentality are addressed in therapeutic
seminars.
It is for this reason that psychologists contribute to the debate
over the nature of prisons. They argue that the origins of
criminal behavior is from the mind. And many inmates have
serious mental illnesses which should be addressed. Also that
people commit crimes through no fault of their own but as a
result of environmental factors, poverty, illiteracy, cultural
Page 3 of 6
Justification for Punishment in Criminal Law
backgrounds or racism. This stance is arguable but it can
partly provide the utilitarian question as to “how do we
punish?”
It is also of the rehabilitative idea that people learn by
example. And so, in restraining violent people from inflicting
harm on another person or on themselves, they should be
taught to change their behavioural pattern to one that is
nonviolent with the goal of returning to the society as better
than they were when they went in. For this reason, prisoners
should be treated with the same respect, kindness and value
we expect them to treat people with when they return to the
society. Locked, safe and secure homes are preferred to
prisons. These homes can be in form of residential premises
devoted to providing therapy and medical care. Education
both formal and informal is emphasized here, because that is
the only way the criminal offenders can get to be useful to
the society someday. Skills such as tailoring, knitting, baking
are encouraged. Reading, writing and courses to enable one
get a college degree are also in line with the rehabilitative
justification.
However, this justification for punishment is not left without
criticism. Placing persons in locked residential homes does
not guarantee a change in behaviour or “repentance”.
Because just like the psychologists rightly claim, the origin
of criminal behaviour is in the mind. Every mind differs
according to what propels it.
Also, the idea of rehabilitation leaves the question, what
length of time should a prisoner be kept for? This infers an
open-end incarceration as it is unknown when a criminal will
be said to be ready to return to the society a better person.
People who are not in favour of rehabilitation are aggrieved
by the fact that the victim of the crime is left without
reparation. While the offender with the guilty mind is cared
for and educated using taxpayers‟ money. Although a
counter argument to this may be that rehabilitation is not to
be adopted for crimes like murder.
Another brain racking criticism is that the inmates can forge
repentance only to return to previous or worse criminal
behaviours.
It is pertinent to note that even with these criticisms, there
have been success records as to the prisoners who have
successfully been punished using this approach, even in
Nigeria.
A study on the effect of the vocational rehabilitative program
in Kobe State prisons shows that a total percentage of 85
agree that the program was beneficial to them on the return
to the society.
EBRIMA SOWE, PELUMI AKINTUNDE, ET AL.
In conclusion, the rehabilitative justification actively seeks to
punish offenders by letting them realize within themselves
the need to desist from crimes. It is furthermore against
stigmatization, unemployment and degradable treatments of
criminals as they are person too who need to be reintegrated
into the society.
The object of rehabilitation matches the punishment with the
offender in question and not necessarily to the crime. It is
generally favoured in public interest. This purpose of
punishment is most suitable with young offenders, convicted
people with no previous bad criminal record and those
involved in commission of trivial offences.
3. INCAPACITATION
I
ncapacitation aims at rendering the offender incapable of
committing other offences. This justification believes
that society needs protection from dangerous criminals
and as such it ensures that offenders are removed from
society for a period of time. This emphasizes that criminals
are likely to re-offend and so should be put away to ensure
safety. This justification reasoning aims to protect society
from dangerous criminals (i.e. criminals likely to re-offend)
by physically removing them from the society against which
they are deemed to have offended or potentially may
endanger. It simply distributes or rearranges offenders in
society such a way as to delay their resumption of crime,
thereby decreasing the crime rate. Punishments such as
amputation, death penalty and exile served the purpose of
incapacitating an offender whatever might be the crime
during this period. The target of this theory is not on the
motive of the offender, but on his physical power which it
seeks to disable or otherwise cripple in order to prevent
repetition of the crime.
However, in modern times the criminal justice system does
not approve of barbaric punishments such as amputation and
exile, except that death sentence is still within the recognized
legislation in jurisdictions of some criminal justice systems
in the world. Incapacitation aims to protect and prevent the
community, because confining individuals to prison,
prevents them from committing further offences in the
community during the period of incarceration.
In the case of State v. Sgt Dennis Osoleka and 7 Ors the
High Court of Enugu State even refused bail to suspects of
kidnapping and abduction as a result of prevalent nature of
the offence of kidnapping in Nigeria, particularly, south-east
Page 4 of 6
Justification for Punishment in Criminal Law
zone of the country. The essence of the refusal of bail as in
the above case is to further protect the society. Sentencing
Judge in the above instance shall consider whether the
offences are a risk to the society which requires a period of
secured confinement. Incapacitation is justified because the
inmates will not be able to repeat criminal acts while they are
under State control and their behaviour strictly controlled.
A downside of this is that it does not prevent offenders from
committing crimes against inmates or officials (while in
prison.)
In summary, it refers to the taking of habitual criminals out
of circulation, so that society will be protected from further
depredations by offenders.
This could be in various forms.
By Life imprisonment
By mandatory minimum sentence
By longer period of imprisonment. This is where the court
sentences dangerous offenders, not just for crimes
committed but in addition, for threat they pose to society.
By other forms of sentences, such as police monitoring or
exercising a measure of control over the movements and
activities of persons of known bad character.
4. RETRIBUTION / LEGALIZED REVENGE
T
his supports the notion that punishment should be
administered because an offence has been committed.
An offender „deserves‟ to be punished because he or
she has violated a rule. This hopes to ensure that the offender
would bear the consequences of their action
Its reflection in Criminal punishment by whipping of
convicted offenders for crimes of violence and the death
penalty for offences of murder; by striking back.
Immanuel Kant who is a retributivist and a leader of this
theory argued that the punishment of criminals is a moral
responsibility of the society and that punishment must be
imposed in accordance with strict law of retribution. To him,
guilt is sufficient justification for punishment. The desire to
make the offender suffer is not because it is good for him but
because it is felt that he deserves to suffer, and this is the
essence of retribution.
EBRIMA SOWE, PELUMI AKINTUNDE, ET AL.
The rationale of retribution as a justification for punishments
is as briefly described in the following sub-headings:
- The desire for vengeance: which is a form of relieve for
both the victim and or family (in the case where victim died),
and the general public. Through this aim of punishment, the
State relieves their need for vengeance and prevents the
possibility of resort to private retaliation and public
aggression on behalf of the victim(s). This is in line with the
assertion of the Utilitarian Philosopher, Jeremy Bentham,
who argued that, the aim of punishment is to promote the
greatest happiness of the greatest number of the community.
The Utilitarian theory is central to Bentham's theory of
punishment, in which the objective was to ensure that a
punishment is in proportion to the mischief produced by a
crime and sufficient to deter others from committing the
same offence.
- Just desert philosophy: This is to say that, the offender
deserves punishment on the basis of justice and fairness. By
committing a crime, an offender gained unfair advantage
over all others who have restrained themselves from
committing crime. Thus, all persons must bear sacrifice on
the basis of obeying the law equally, to maintain social
equilibrium in society. As a result, all offenders deserved and
must be punished to destroy their unfair advantage.
- Civil / Political Obligation: All persons owe duties to others
not to infringe on their rights, for one‟s right ends where
another person‟s right begins.
Page 5 of 6
Justification for Punishment in Criminal Law
 WHEN IS PUNISHMENT UNJUSTIFIED?
There can be instances where, despite the guideline
justifications presented earlier, are not applied as rationales
in punishing criminals. This will render punishments
unjustified, and as a result may defeat the general purpose of
punishment.
One of these instances is where personal sentiments are
directed towards the offender when carrying out
punishments, based on personal relationship or status of
offender. This is why a punishment cannot be justified when
the person imposing the punishment has an interest in the
person being punished.
Also, to justify punishments, the punishment has to affect the
wronging party and not the wronged as a result of the
wronging party‟s action.
Lastly, the punishment must be proportionate to the crime.
This means that, a person should only be punished to that
extent necessary to destroy unfair advantage. Therefore, an
excessive punishment would be undeserved and unfair,
whilst an insufficient punishment would not completely
destroy an offender‟s advantage as a result of his/her crime.
EBRIMA SOWE, PELUMI AKINTUNDE, ET AL. Justification for Punishment in Criminal Law

Acknowledgements

This academic essay is a total contribution of the authors

stated in this article who are currently students at the
Nigerian Law School in Abuja. This paper form part of a
group presentation assignment given by the Law School as
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