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Reformative, Deterrent and Retributive Aspects of Imprisonment

Updated: Feb 20, 2022

Written by - Katari and Devi Nandini




INTRODUCTION


To maintain discipline in society the practice of punishment is a very essential element. To administer justice and impart punishment to the guilty, law plays a vital role. Some schools of Law support the punishment and others do not. There are many theories of punishment which are the tributaries and informative and preventive. The main motive of the punishment and various theories of punishment is to inculcate peace in the society and to prevent the criminal activities of the people. The concept of punishment is associated with the law of crimes.


Crime is a major problem that is increasing at every stage in society. Lack of punishment creates Chaos in society and there will not be any proper regulation and conditions in society. The famous philosopher Roscoe Pound stated that "law is the body of principles recognised or enforced by the public and the regular tribunals and the administration of justice"[1].


Aristotle said that man is a social animal. He cannot live in an isolated place. By the development of society, the people also develop in many ways. They develop their discipline, emotions, character, livelihood, living standards and many more. In the development of the character and the emotions they even start to develop vengeance and cruelty. Some people commit crime being so cruel and Some people commit crime being so innocent that they can't even find their food and can't even live their life, so to overcome all these hurdles they think that there is no other option other than a crime. While living so, a man must have experienced a conflict of interest and that created the necessity for providing the administration of justice. The administration of justice with the sanction of the physical force of the State is unavoidable and admits no substitute.


Punishment is a way of reducing criminal behaviour either by deterring the potential offenders or by disabling and preventing them from repeating the offence or by reforming them into law-abiding citizens. The methods of punishment play a very great role in controlling crime and criminals. The theories of punishment are classified into four categories.


They are:


1. Reformative theory.


2. Retributive theory


3. Deterrent theory


4. Preventive theory.


1. Reformative Theory


To administer justice, penalization is required and the state must maintain a peaceful environment for its people. The system of penalization has changed with the change of time and new approaches and modifications have been implemented in the criminal system. Mary Harris Jones said that Reformation is like education, it is a journey, not a destination. “The basic principle of the reformative theory emphasizes on the renewal of the criminal and the beginning of a new life for him"[2]


In the reformative theory, the object of punishment ought to be the reform of the criminal, through the strategy of individualization. The object is to create the ethical reform of the wrongdoer. The criminal will be educated and instructed in the art or any trade throughout imprisonment so he is also able to begin his life in a very new and different way when he is released from jail. The judge has to study the character, age and environment that the wrongdoer has grown up in and the circumstances that made him commit the offence and many factors while awarding the punishment.


The Roman jurisprudence says that the penalization shouldn't be for the sake of punishment, but it should be imposed to bring reformation of the wrongdoer life[3]. The reformative theory was introduced in the 18th century. The reformative theory of penalization has mainly focused on the criminal individual rather than the crime he committed. This theory was introduced to bring a change in the perspective of the wrongdoer, therefore, rehabilitating him as a law-abiding person in society. According to this theory, the crime is completely related to the psychological characteristics and the surrounding ambience of the criminal. So, the criminal is treated as the patient and the penalisation will be awarded based on that in a rehabilitated manner. This theory also strongly believes that the imprisonment should not be for the aim of eliminating and portraying him as a criminal in the society but to create a modification in the mental outlook through effective measures during the term of their sentence. This theory is also a strong believer that the offender's sympathetic, tactful and affectionate treatment will have a revolutionary change in their characters.


A crime is sometimes committed by a criminal because of the result of the conflict between the character and the motive of the criminal. It might be taken into consideration that one might commit a crime either as a result of temptation if the motive is stronger or it is as a result of restraint obligatory by the character is weaker. It states that the crime is a kind of illness that cannot be cured by killing or with rigorous punishment; instead, it can only be cured with the help of medication and the process of reformation. Mahatma Gandhi once stated that “An eye for an eye leaves everyone blind can Employing reformative theory can heal the current crime rate and polish the punishment system in India''. He also said that “HATE THE SIN, NOT THE OFFENDER “.


2. Deterrent Theory of Punishment


This is the most effective theory leading to many complications and hard choices. The word didn't mean a thing that discourages or intended to discourage someone from doing something. The punishment is given to a criminal in such a way that others are discouraged or scared to commit that kind of crime. The Spanish mint also discourages the criminal from doing that again and will feel guilty for doing such a heinous crime. This theory will deter people from committing crimes and reduce the probability and the level of offending in society. There are two aspects of the punishment which may have an impact on deterrence. The first being the certainty of punishment, by increasing the likelihood of punishment and apprehension. This may have a deterrent effect. The second thing relates to the severity of the punishment. The severity of the punishment for a particular crime might influence the behavior of a particular person. The deterrent theory creates a state of mind in the people that the punishment is so severe it is not worth the risk of getting caught.


There are two main goals of the deterrence theory of penalization[4]. The first is individual determinants, which aim to discourage the offender from criminal acts in the future. The belief is that when punished the offenders recognize the unpleasant consequences of their actions on themselves and will change their behavior accordingly. The other goal is general deterrence and the intention to deter the general public from committing a crime by punishing those who do the offence. For example, a person is sent to jail because of rash and negligent driving. It gives a clear message to the rest of society that this sort of crime results in an unpleasant punishment from the criminal justice system. Most people do not want to end up in prison and so they are deterred from committing crimes that might be punished that way.


3. Retributive Theory


This theory penalizes the offender in such a way that the offence is balanced. It is normally called an eye for an eye and a tooth for a tooth. It is the most classic form of retributivism which is known as the code of Hammurabi's lex talionis. This theory says that the wrongdoer must suffer pain. The offender must be punished for being morally guilty. There is a Nexus between the two Court principles of retributivism[5]. They are desert and proportional. According to this theory, the punishment must be proportional to the crime committed. Desert refers to some detriment that has caused the accused to commit a crime.


The retributive punishment has to be proportional to the degree of the desert. No theory punishes a person because of the wrongs already committed except the one case filed, but in the theory of retributive punishment, the punishment will be awarded by taking into consideration all the crimes he has committed in the past. We do injustice if you fail to punish the criminals because they then do not receive what they deserve is the motive of the retributive theory school of law. One of the views of distributive theory pointed out that the idea of punishment is to cancel or negate the crime committed by a criminal. The retributive theory focuses on the punishment to only those who deserve it.

Advantages of Retributive Theory:


1. Emphasizes Proportional Punishment.


2. Retributive punishment sends out a message.


3. It differentiates the victims and the criminals in the society through punishment so that the others can be more careful


CONCLUSION


We must recognize that punishment is something that should be administered with caution. "Let go of 100 guilty people rather than punish one innocent person," as the proverb goes. We must recognize that punishing someone had a significant impact on his mental, bodily, and social position. It has had and continues to have a significant impact on him. Use extreme caution while dispensing criminal justice.

[1] Sai Abhipsa Gochhayat, "Social Engineering by Roscoe Pound: Issues in Legal and Political Philosophy" , 5 SSRN (2010). [2] Robert S. Summers, “Punishment and Responsibility by A. Hart”, 19 The University of Toronto Law Journal (1969) [3] Rustam Singh Thakur, "An eye for an eye will turn the whole world blind -In special context to reformative theory of punishment", 6 Manupatra (2003). [4] Ihekwoaba D. Onwudiwe, Jonathan Odo and Emmanuel C. Onyeozili," Deterrence Theory" , Marislute, available at : https://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf , (last accessed 25th July 2021). [5] Amit Bindal,"Rethinking Theoretical Foundations of Retributive Theory of Punishment”, 51 Journal of Indian Law Institute, (2009) https://www.jstor.org/stable/43953451 .

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