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Theories of Punishment

The document discusses various theories of punishment within the criminal justice system, including Retributive, Deterrent, Preventive, Utilitarian, Reformative, Compensatory, and Incapacitation theories. Each theory presents a different perspective on the purpose and application of punishment, ranging from vengeance and deterrence to rehabilitation and compensation for victims. The document emphasizes the need for a balanced approach to punishment that considers the implications for both offenders and society.

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16 views12 pages

Theories of Punishment

The document discusses various theories of punishment within the criminal justice system, including Retributive, Deterrent, Preventive, Utilitarian, Reformative, Compensatory, and Incapacitation theories. Each theory presents a different perspective on the purpose and application of punishment, ranging from vengeance and deterrence to rehabilitation and compensation for victims. The document emphasizes the need for a balanced approach to punishment that considers the implications for both offenders and society.

Uploaded by

john
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Theories of Punishment

Dr TV Warikandwa
Introduction
• Punishment

• A term that is inherent to criminal justice. It is only because of the term punishment, that certain acts
are classified as crimes. Down the lane of the history of the society, we have seen that without
punishments, it would have sometimes been impossible to tame the barbaric, as well as
primitive tendencies of the public.

• It was the weapon named ‘punishment’, that the rulers used against their subjects to maintain fear in
the minds of the public regarding the capacities and powers of their rulers. Punishments sometimes
were also given as an insult to someone else.

• However, the most common punishment from which all of us are familiar is the scolding or mild
beating that we get from our parents. In that case, what are the theories of punishment actually in
case of serious crimes?
The theories of punishment
• RETRIBUTIVE THEORY.
• DETERRENT THEORY.
• PREVENTIVE THEORY.
• INCAPACITATION THEORY.
• COMPENSATORY THEORY.
• REFORMATIVE THEORY.
• UTILITARIAN THEORY.
Retributive theory of punishment
• The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in
the society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a
penal sentence over a perpetrator. It is based on a very small doctrine, namely the
doctrine of Lex talionis, which if translated, means ‘an eye for an eye.

• Now, if looked at from the perspective of very serious and heinous offences, like the
gang-rape cases, people may feel that it is better to inflict such retributive punishments,
to ensure that a deterrent is set across the society, to prevent such crimes shortly.

• However, we forget to understand sometimes that always having a retributive approach


will render the society one with a primitive system of justice, where the Kings or the
Judges were considered to be the supreme beings and were provided with the stature of
God Himself (hence the address My Lord) and thus, collapse the very concepts of the
representatives being ‘servants’.
Two doctrines are related to the
Retributive Theory of Punishment
1. Doctrine of Societal Personification - This doctrine signifies that in
society, every time an atrocious crime of an extreme nature is
perpetrated, that crime undertakes the form of a natural being and
society behaves in a united manner to make sure justice is done.
2. Doctrine of Correctional Vengeance - This doctrine refers to when
in a fit to get justice the society starts to pressure the authorities or
the system to impose vengeful punishments upon the accused of
creating a restrictive measure for future generations.
DETERRENT THEORY OF PUNISHMENT

• In the Deterrent theory of punishment, the term “DETER” means to abstain


from doing any wrongful act. The main aim of this theory is to “deter” (to
prevent) the criminals from attempting any crime or repeating the same
crime in future.

• According to this theory if someone commits any crime and he/she is


punished by severe punishment, then, the result may be that the people of
the society will be or may be aware of the severe punishments for certain
kinds of crimes and because of this fear in the minds of the people of the
society, the people may stop from committing any kind of crime or
wrongful act. The deterrent theory of punishment is utilitarian in nature.
PREVENTIVE THEORY OF PUNISHMENT

• The preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals.
The main object of the preventive theory is transforming the criminal, either permanently or
temporarily. Under this theory, the criminals are punished by death sentence or life imprisonment
etc…

• The founder of this theory held that punishment aims to prevent crimes. The crimes can be
prevented when the criminal and his notorious activities are checked. The check is possible by
disablement.

• The disablement may be of different types. Confining inside the prison is a limited form of
disablement, that is temporary and when it is an unlimited form of disablement, that is permanent.

• It suggests that imprisonment is the best mode of crime prevention, as it seeks to eliminate
offenders from society, thus disabling them from repeating the crime. The death penalty is also
based on this theory
UTILITARIAN THEORY OF PUNISHMENT

• The utilitarian hypothesis of discipline tries to rebuff guilty parties to debilitate, or “hinder,” future
bad behaviour. Under the utilitarian philosophy, laws ought to be utilized to amplify the joy of
society.

• Since wrongdoing and discipline are conflicting with bliss, they ought to be kept to a base.
Utilitarians comprehend that a wrongdoing-free society doesn’t exist, yet they attempt to incur just
as much discipline as is needed to forestall future violations.

• It perceives that discipline has ramifications for both the wrongdoer and society and holds that the
all-out great created by the discipline ought to surpass the absolute malevolence. From a utilitarian
viewpoint, activities that advance the satisfaction of the larger part in the public arena ought to be
sought after while those that prevent this bliss ought to be evaded.

• The utilitarian hypothesis can be applied to the issue of the death penalty since this type of
discipline produces both positive and negative results.
REFORMATIVE THEORY OF PUNISHMENT

• The idea of the Reformative Theory is a hypothesis. As per this hypothesis, the object of discipline
ought to be the change of the crook, through the strategy for individualization. It depends on the
humanistic rule that regardless of whether a wrongdoer perpetrates wrongdoing, he doesn’t stop
being a person.

• The theory of punishment being followed in Namibia to change the crooks as opposed to rebuffing
them is not that compelling in avoidance of the event of violations in Namibia. The essential idea of
law is not to be static but to be dynamic in nature.

• The reason for this hypothesis of discipline is to make the criminal languish over his bad behaviour.
Here the motivation behind the discipline is profoundly customized and rotates around the mental
outlet of the person in question or his family.

• The primary reason might be accomplished to parole and probation, which have been
acknowledged as current procedures of improving the guilty parties all around the globe.
COMPENSATORY THEORY OF
PUNISHMENT

• The main look out in the law of crimes is to penalize the


criminal, and/or to seek his reformation and rehabilitation with
all the resources and goodwill available through the Courts and
other Governmental and non-Governmental organizations.

• It must be seen that the criminals should get a proper


judgement for their crimes so caused and the harassment
caused to the victim and towards their family members and
property.
The victims in a crime can be
compensated on mainly two grounds,
namely-
1. A criminal who had inflicted an injury against the person (or
group of persons), or the property must be compensated for
the loss caused that has caused to the victim, and
2. The State that has failed to provide safety towards its citizens,
must receive compensation for the loss caused.
3. Compensation is the true essence of a deterrent, reformative
and a necessary contribution of retribution.
INCAPACITATION THEORY OF
PUNISHMENT
• The word “incapacitation” means ‘to prevent the offence by punishing so that the
future generation fears to commit the criminal act.’ Incapacitation happens either
by removing the person from society, either temporarily, or permanently or by
some other method, which restricts him due to physical inability.

• One of the primary purposes of this theory is removing sufficiently dangerous


persons from society. The risk that is found to be posed by the offenders is largely
a matter of inception. Therefore, if one country treats one offence in one way,
another country will treat the same offence differently.

• The theory of incapacitation gets reserved only for those people who are either
sentenced to prison or life imprisonment. Yet, it also includes things like being
supervised by the departments within the community, like probation and parole.

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