An Eye for an Eye Will Turn the Whole World Blind: a Critical Study with Respect to the Adoption of Reformative Theory of Punishment
Chapter one
INTRODUCTION
This line by Mahatma Gandhi is the thrust of the Reformative Theory of Punishment . The most recent and the most humane of all theories are based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crime. Reform in the deterrent sense implied that through being punished the offender recognized his guilt and wished to change. This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of a hardened criminal this theory may not work with the effectiveness.
"Crime is behaviour or action that is punishable by criminal law. A crime is a public wrong, as opposed to a moral, wrong; it is an offence committed against (and hence punishable by) the state or the community at large. Many crimes are immoral, but not all actions considered immoral are illegal." According to Durkheim, "crime exists in every society which do and do not have laws, courts and the police. He asserts that all societies have crime, since all societies involve a differentiation between two kinds of actions, those that are allowed and those that are forbidden. He calls the latter type criminals."
The theory of criminal justice is the branch of philosophy of law that deals with criminal justice and in particular punishment. It has deep connections to other areas of philosophy, such as political philosophy and ethics, as well as to criminal justice in practice. Reformative theory forms a crucial part of the theory of criminal justice. This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community. The reformation generally takes place either through probation or parole as measures for reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of hardened criminals this theory may not work with the effectiveness. In these cases come the importance of the deterrence theories and the retributive theories. Thus each of these four theories has their own pros and cons and each being important in it, none can be ignored as such. Reform theory argues that the amount of punishment should be enough to cause reform in the offender. Reaction to crimes has been different at different stages of civilization and even at a given time they have been different in different society at a given time. The attitude towards criminal has always been coloured by extreme types of emotions displayed by society. In words of Elmer Hubert Johnson11 the criminal may be described as monster or be pictured as a hunted animal or as the helpless victim of brutality.
Chapter Two
CONCEPT OF LEX TALIONIS
An eye for an eye is the principle that a person who has injured another person is similarly injured in retribution, or according to other interpretations the victim receives the value of the injury in compensation. According to Jewish interpretations the victim in criminal law gets financial compensation based on the law of human equality eschewing mutilation and 'lex talionis. The English word talion means a retaliation authorized by law, in which the punishment corresponds in kind and degree to the injury, from the Latin talio. The phrase "an eye for an eye" is sometimes trivially referred to the Latin term lex talionis, the law of talion.
"Can punishment be in form of reform": an age-old controversy? 'Hate the crime and not the criminal ' very rightly said by Mahatma Gandhi. Whatever be the ultimate aim of punishment in the first instance it is the imposition on an evil. Any power of punishment to reform is widely and strongly denied on the dual grounds of principle and of experience. Experiments have shown that punishment ordinarily do it reform. On the contrary it often degrades coleuses and brutalizes. Men commonly come out of prison worse, than they went in. Punishment tends to search for an answer but more often ends up raising more questions.
The term lex talionis does not always and only refer to literal eye-for-an-eye codes of justice (see rather mirror punishment) but applies to the broader class of legal systems that specify formulaic penalties for specific crimes, which are thought to be fitting in their severity. Some propose that this was at least in part intended to prevent excessive punishment at the hands of either an avenging private party or the state. The most common expression of lex talionis is "an eye for an eye", but other interpretations have been given as well. Legal codes following the principle of lex talionis have one thing in common: prescribed 'fitting ' counter punishment for an offence. In the famous legal code written by Hammurabi, the principle of exact reciprocity is very clearly used. For example, if a person caused the death of another person, the killer would be put to death.
Under the right conditions, such as the ability for all actors to participate in an iterative fashion, the "eye for an eye" punishment system has a mathematical basis in the tit for tat game theory strategy.
The simplest example is the "eye for an eye" principle. In that case, the rule was that punishment must be exactly equal to the crime. Conversely, the twelve tables of Rome merely prescribed particular penalties for particular crimes. The Anglo-Saxon legal code substituted payment of wergild for direct retribution: a particular person 's life had a fixed value, derived from his social position; any homicide was compensated by paying the appropriate wergild, regardless of intent. Under the British Common Law, successful plaintiffs were entitled to repayment equal to their loss (in monetary terms). In the modern tort law system, this has been extended to translate non-economic losses into money as well. The meaning of the principle Eye for an Eye is that a person who has been injured by another person returns the offending action to the originator in compensation, or that an authority does so on behalf of the injured person. The exact Latin (lex talionis) to English translation of this phrase is actually "The law of retaliation." At the root of this principle is that purposes of the law is to provide equitable retribution.
It should, however, be borne in mind that reformative idea must be kept within sensible limits. In its extreme application, the reformative idea will not secure its goal and might lead, as farce reformation should go hand in hand with retribution and deterrence. A certain amount of terror is also desirable, and at times, evens necessary. So the idea of deterrence cannot be ignored. Deterrence cannot be wholeheartedly and completely substituted by reformation pure and sole. The perfect blend of deterrence and reformation can be seen in Indian Jurisprudence. Some of the legislative provisions, which deal with reformative concept, are Reformative schools act, 1897 and Juvenile Justice Act, 2000(amended).
Inception of the concept:
Various ideas regarding the origins of lex talionis exist, but a common one is that it developed as early civilizations grew and a less well-established system for retribution of wrongs, feuds andvendettas, threatened the social fabric. Despite having been replaced with newer modes of legal theory, lex talionis systems served a critical purpose in the development of social systems — the establishment of a body whose purpose was to enact the retaliation and ensure that this was the only punishment. This body was the state in one of its earliest forms.
The principle is found in Babylonian Law. It is surmised that in societies not bound by the rule of law, if a person was hurt, then the injured person (or their relative) would take vengeful retribution on the person who caused the injury. The retribution might be much worse than the crime, perhaps even death. Babylonian law put a limit on such actions, restricting the retribution to be no worse than the crime, as long as victim and offender occupied the same status in society, while punishments were less proportional with disputes between social strata: like blasphemy or laesa maiestatis (against a god, viz., monarch, even today in certain societies), crimes against one 's social better were systematically punished as worse.
Roman law moved toward monetary compensation as a substitute for vengeance. In cases of assault, fixed penalties were set for various injuries, although talio was still permitted if one person broke another 's limb.
Position of lex talionis under the domain of religion
Lex talionis in Christianity
Christian interpretation of the Biblical passage has been heavily influenced by the Church father St. Augustine. He already discussed in his Contra Faustum, Book XIX, the points of 'fulfilment or destruction ' of the Jewish law. George Robinson characterizes the passage of Exodus ("an eye for an eye") as one of the "most controversial in the Bible". According to Robinson, some have pointed to this passage as evidence of the vengeful nature of justice in the Hebrew Bible. Similarly, Abraham Bloch speculates that the "lex talionis has been singled out as a classical example of biblical harshness." Stephen Wylen asserts that the lex talionis is "proof of the unique value of each individual" and that it teaches "equality of all human beings for law." In the Sermon on the Mount), Jesus of Nazareth urges his followers to turn the other cheek rather than to seek legal steps for any compensation that corresponds in kind and degree to the injury.
You have heard that it was said, "An eye for an eye and a tooth for a tooth". But I say to you, do not resist an evildoer. If anyone strikes you on the right cheek, turn to him the other also. This saying of Jesus is frequently interpreted as criticism of the Old Testament teaching, and often taken as implying that "an eye for an eye" encourages excessive vengeance rather than an attempt to limit it. Lex talionis in Islam
The Qur 'an mentions the "eye for an eye" concept as being ordained for the Children of Israel.[18] The principle of Lex talionis in Islam is Qasas as mentioned in "O you who have believed, prescribed for you is legal retribution (Qasas) for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment." Some Muslim nations, still apply the rule, in accordance with the Mosaic Law. In some countries that use Islamic law (sharia), the "eye for an eye" rule is applied quite literally.
“In the Torah We prescribed for them a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds. Those who do not judge according to what God has revealed are doing grave wrong.”
Chapter Three
CONCEPT OF PUNISHMENT
The word ‘punishment’ literally means torture that a person should undergo on account of doing a wrong. It can be seen from a religious or an ethical point of view. ‘The religious injunction is that the god being the ruler of this world punishes those who break his laws. The mills a god grind surely though slowly’. A person should always act according to his beat rational judgment. If he makes a wrong by default, he should correct it by undergoing a self imposed penance or remorse.
Prof. flew has suggested five criteria for the use of the word punishment in its primary sense: 1. It must involve an evil or an unpleasantness to the victim. 2. It must be for an actual or supposed offence. 3. It must be for an actual or supposed offender. 4. It must be the work of personal agencies (i.e., not merely the natural consequences of an action.) 5. It must be imposed by an authority (real or supposed) conferred by the system of rules against which the offence has been committed.
In this context questions about the proper justification for punishment, particularly incarceration, are as old as the criminal law. In the classic textbook Explication, there are four competing, sometimes complementary, rationales offered for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.
Punishment is the sanction imposed on a person for the infringement of the rules of society. It is primarily used as a method of protecting society by reducing the occurrence of criminal behaviour. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society 's cry for justice against the criminal."
In Ravji v State of Rajasthan, a Division Bench observed that 'it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial '. A dispassionate analysis of criminological jurisprudence would reveal that capital punishment is justified only in extreme cases in which a high degree of culpability is involved causing grave danger to society.Society has resorted to many different methods in executing criminals and other allegedly dangerous persons in the past e.g. drowning, stoning to death, burning at the stake and beheading etc. These methods, however, appear barbaric especially in comparison to the seemingly sanitized, quick, and painless procedure of death by lethal injections, the most commonly used method of execution in contemporary America.
TYPES OF PUNISHMENT * Retribution:
Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best response to crime. When an offender breaks the law, s/he thereby forfeits or suspends her/his right to something of equal value, and justice requires that this forfeit be enacted. This is sometimes taken to mean that justice involves seeking vengeance on behalf of the aggrieved party, or society as a whole.
In ethics and law, "Let the punishment fit the crime" is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction. The concept is common to most cultures throughout the world. Its presence in the ancient Jewish culture is shown by its inclusion in the law of Moses, specifically in Deuteronomy , and Exodus which includes the punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." That phrasing in turn resembles the older Code of Hammurabi. Many other documents reflect this value in the world 's cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly between cultures and individuals.
Proportionality requires that the level of punishment be scaled relative to the severity of the offending behavior. However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. For utilitarian’s, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has been committed and carried out to atone for the damage already done.
Criticism:
Many more jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factors, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed individual and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire. In some countries, such as Finland, fines are fixed as percentages of the offender’s personal income, rather than a certain dollar amount. This allows for the law to remain fair, in that is applies to all citizens equally, yet prevents the wealthy from simply paying to break the law without suffering any substantial punishment.
* Rehabilitation:
Rehabilitation means to restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity.
The assumption of rehabilitation is that people are not permanently criminal and that it is possible to restore a criminal to a useful life, to a life in which they contribute to themselves and to society. A goal of rehabilitation is to prevent habitual offending, also known as criminal recidivism. Rather than punishing the harm out of a criminal, rehabilitation would seek, by means of education or therapy, to bring a criminal into a more normal state of mind, or into an attitude which would be helpful to society, rather than be harmful to society.
This theory of punishment is based on the notion that punishment is to be inflicted on an offender so as to reform him/her, or rehabilitate them so as to make their re-integration into society easier. Punishments that are in accordance with this theory are community service, probation orders, and any form of punishment which entails any form of guidance and aftercare towards the offender.
This theory is founded on the belief that one cannot inflict a severe punishment of imprisonment and expect the offender to be reformed and to be able to re-integrate into society upon his/her release. Indeed, the United States Code states that sentencing judges shall make imprisonment decisions "recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation".[1] Although the importance of inflicting punishment on those persons who breach the law, so as to maintain social order, is retained, the importance of rehabilitation is also given priority. Humanitarians have, over the years, supported rehabilitation as an alternative, even for capital punishment.
Criticism:
Rehabilitation theories present however the following deficiencies:
First, there is no sound scientific research to determine how different individuals react to the same rehabilitating methods. Second, rehabilitation may depend more decisively on the individual psychological background, hence on his particular motives to commit crimes, than on the rehabilitating methods or philosophy.
Third, a rehabilitation program may prove to be too costly and complex to be successfully implemented in most countries.
Finally, rehabilitation must refer to the sociological findings on the socialization and resocialization processes, as change in lifelong socially acquired patterns of behavior and values entails a much more complex – and sometime traumatic – change on the individual 's structure of character. * Incapacitation
Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing (rather than merely deterring) future offending.
Imprisonment incapacitates the prisoner by physically removing them from the society against which they are deemed to have offended. Long term imprisonment with the intention to incapacitate is often used by criminal justice systems against habitual criminals who recidivate.
Incapacitation is a reductivist (or “forward looking”) justification for punishment. Reductivism is underpinned by the theory of moral reasoning known as utilitarianism, which maintains that an act is defensible and reasonable if its overall consequences are beneficial to the greatest number of people. Thus, the pain or suffering imposed on an offender through punishment is justified if it reduces or prevents the further harm that would have been caused to the rest of society by the future crimes of that offender. The concern here is with the victim, or potential victim. The rights of the offender merit little consideration. Incapacitation has long been a significant strategy of punishment. For example, in Britain during the 18th and 19th centuries, convicted offenders were often transported to Australia and the Americas. In the 21st century, the physical removal of offenders from society remains the primary method of incapacitation in most contemporary penal systems. This usually takes the form of imprisonment, although other methods of incapacitation are in operation. The most severe and permanent form of incapacitation is capital punishment. Capital punishment is often justified through the concept of deterrence, but whether the death sentence actually deters potential offenders is highly contested. What is indisputable is that once put to death an individual is incapable of committing further offenses. Capital punishment is therefore undeniably “effective” in terms of its incapacitative function.
Other types of severe or permanent incapacitative punishments include dismemberment, which is practiced in various forms. For example, the physical or chemical castration of sex offenders has been used in some Western countries, notably North America. Less severe forms of incapacitation are often concerned with restricting rather than completely disabling offenders from reoffending. These include sentences such as disqualification from driving or curfews. In the United Kingdom, attendance center orders are used for individuals under the age of 21. Their aim is to restrict the leisure time of offenders by requiring them to attend a center in order to engage in some form of activity for a specified number of hours.
However, as mentioned above, the primary method of incapacitation is imprisonment. As with capital punishment, incapacitation in the form of imprisonment is considered to be a strategy that
“works” because, for the duration of their prison sentence, offenders are restricted from committing crimes within the community.
So, according to this theory, punishment is not concerned with the nature of the offender, as is the case with rehabilitation, or with the nature of the offense, as is the case with retribution. Rather, punishment is justified by the risk individuals are believed to pose to society in the future.
As a result, individuals can be punished for “hypothetical” crimes. In other words, they can be incarcerated, not for crimes they have actually committed but for crimes it is anticipated or assume they will commit.
Criticism:
The use of incapacitation as a justification for punishment can be inherently problematic in both theory and practice. First, incapacitative sentences such as the three-strikes principle effectively repunish individuals for previous crimes. Alternatively, sentences based on selective incapacitation punish individuals for crimes not yet committed. There is an inherent risk with selective incapacitation that some of the individuals who are identified as “dangerous,” and thus incarcerated, would not have gone on to offend. However, even if the methods of prediction were accurate, there are naturally moral and ethical questions about incarcerating individuals for what they may do rather than what they have actually done. Incapacitative sentences also maintain and legitimize structural divisions within society. U.S. sociologist Christian Parenti comments that the excessive use of incarceration in the United States is indicative of a growing class-based, racial intolerance. The three-strikes principle, as with imprisonment in general, is disproportionately applied to minorities and the poor. While African Americans make up only 7% of the Californian population, for example, they constitute 31% of the state prison population and 44% of its “three-striker” population. At the same time, a penal strategy based around the concept of incapacitation places no emphasis on the crimes of the powerful. So white-collar, corporate, and environmental crimes, which are more costly and, some would argue, more harmful to society, are overlooked. The emphasis instead is placed on street crime, which is disproportionately committed by the young and the poor.
Finally, incapacitative sentences, which are frequently dispensed to young people, take no account of the fact that most individuals “grow out” of their criminal activity. Many “criminal careers” do not last beyond the late teen years. Thus, long sentences without the possibility of parole make no allowance for the transitory nature of much law breaking. * Deterrence:
Proponents of deterrence believe that people choose to obey or violate the law after calculating the gains and consequences of their actions. Overall, however, it is difficult to prove the effectiveness of deterrence since only those offenders not deterred come to the notice of law enforcement. Thus, we may never know why others do not offend.
There are two basic types of deterrence—general and specific. General deterrence is designed to prevent crime in the general population. Thus, the state’s punishment of offenders serves as an example for others in the general population who have not yet participated in criminal events. It is meant to make them aware of the horrors of official sanctions in order to put them off committing crimes. Examples include the application of the death penalty and the use of corporal punishment. Since general deterrence is designed to deter those who witness the infliction of pains upon the convicted from committing crimes themselves, corporal punishment was traditionally, and in some places is still, carried out in public so that others can witness the pain. Although outlawed in the United States, public punishment is still used in other countries. For instance, in August 2001, Nigeria introduced shari’a, or Islamic law, that allows the application of corporal punishment. That same month, Iran sentenced 20 people to be caned for consuming alcohol. In November 2001, Saudi Arabia lashed 55 youths for harassing women. Likewise, Human Rights Watch reports that under Saddam Hussein’s regime in Iraq, those who violated military orders or committed other crimes could be punished by amputation of arms, legs, and ears. Finally, in England and the United States, hangings were once carried out in public. The public and family members were allowed to attend so that they could see what happened to those who broke the law. Today, some advocates call for televised executions as a way of deterring murder.
Specific deterrence is designed—by the nature of the proscribed sanctions—to deter only the individual offender from committing that crime in the future. Proponents of specific deterrence also believe that punishing offenders severely will make them unwilling to reoffend in the future. A drunk driver, for example, would be deterred from drinking and driving because of the unpleasant experience he or she suffered from being arrested, or having his or her license taken away or his or her car impounded. The state must apply enough pain to offset the amount of pleasure derived from drinking.
Criricism:
Deterrence theory is criticized for its assumptions about opponent rationales.
First, it is argued that suicidal or psychotic opponents may not be deterred by either forms of deterrence.
Second, if two enemy states both possess nuclear weapons, Country "X" may try to gain a first strike advantage by suddenly launching weapons at Country "Y", with a view to destroying its enemy 's nuclear launch silos thereby rendering Country "Y" incapable of a response.
Third, diplomatic misunderstandings and/or opposing political ideologies may lead to escalating mutual perceptions of threat, and a subsequent arms race which elevates the risk of actual war — a scenario illustrated in the movies WarGames and Dr. Strangelove. An arms race is inefficient in its optimal output, as all countries involved expend resources on armaments that would not have been created if the others had not expended resources. This is a form of positive feedback. Fourth, escalation of perceived threat can make it easier for certain measures to be inflicted on a population by its government, such as restrictions on civil liberties, the creation of a military–industrial complex, and military expenditures resulting in higher taxes and increasing budget deficits.
Chapter Four
PUNISHMENT IN THE INDIAN AND GREEK CONTEXT
Greek:
Beginning with the time of Homer in the tenth century before Christ, the same view prevailed as is found in all peoples at this stage prior to the refinements, cultural and scientific, which are deemed civilized. The unit of punishment was the household wherein the master had the right to penalize to the extent of killing, and the duty to avenge its wronged members. It is not conceptually difficult for a transition to be made from this to the State as a punitive and protective body, while, under Christianity the process is reversed from the collectivism of family guilt to the individual.
Plato:
Plato 's over-all view of punishment may be found in Gorgias wherein he states:
Now the proper office of punishment is two-fold: he who is rightly punished ought either to become better and profit by it, or he ought to be made an example to his fellows, that they may see what he suffers, and fear and become better. Those who are improved when they are punished, are those whose sins are curable; and they are improved by pain and suffering; for there is no other way in which they can be delivered from the evil.
Aristotle:
Though perhaps weighted differently, all the present-day theories of punishment may be found in Plato: retribution in the sense of recompense, of a deserved punishment with or without religious connotations; deterrence in the sense of punishment primarily inflicted for its exemplary nature; and reformation, containing the treatment theory. Modern, too, is Plato 's punishment of the criminal and over-all (with some contradictions) rejection of retaliation, the punishment of the crime, embodied in the Hammurabic and Mosaic Codes as lex talonis, prevalent among the primitive. His ideas of expiation are primitive in the sense of a stain of blood on the entire family and the pollution of the group; Christian in the theory of penance for guilt; non-primitive in the State 's acting officially and punishment by the corporate body. That an individual may be sacrificed in the interest of society is common to all groups, with the extermination of the incurable practiced today although rationalized differently. However, an aspect of punishment which remained to be treated more fully was its justification. This was Aristotle 's great contribution, and was derived from an application of the golden mean in conjunction with a duality of voluntary and involuntary. Only voluntary wrongs will be punished, but the State 's right to punish emanates from an involuntary contract created by the wrongdoer in disrupting equality.
Indian:
The Hindu jurisprudence or the legal system (Vyavahara Dharmashastra) is embedded in Dharma as propounded in the Vedas, Puranas, Smritis and other works on the topic. The word ‘dharma’ has wide varieties of meanings. A few of them would enable us to understand the width of that expression. For instance, the word Dharma is used to mean justice (nyaya), what is right in a given circumstance, moral, religion, pious or righteous conduct, being helpful to living beings, giving charity or alms, natural qualities or characteristics or properties of living beings and things, duty, law and usage or custom having the force of law, and also a valid Rajashasana (royal edict).
Manu on punishment:
According to Manu punishment was suggested by the sages in order to curve unrighteousness and to preserve righteousness hampered. He envisaged the idea of matsyananyaya without the system of punishment. Vishnu has pointed out that a king should show honour to the righteous and inflict punishment on the unrighteous. He further adds where punishment with a black hue and a red aye advances with irresistible might the king deciding causes justly, there the people will prosper.
Kautilya’s Arthashastra:
Whoever imposes severe punishment becomes repulsive to the people; while he who awards mild punishment becomes contemptible. But whoever imposes punishment as deserved becomes respectable. For punishment when awarded with due consideration, makes the people devoted to righteousness and to works productive of wealth and enjoyment; while punishment, when ill-awarded under the influence of greed and anger or owing to ignorance, excites fury even among hermits and ascetics dwelling in forests, not to speak of householders.
Example of Transformation in Indian history
Maharishi Valmiki’s story:
Maharishi Valmiki was born as Ratnakara to sage Prachetasa. At a very young age, Ratnakara went into the forest and got lost. A hunter, who was passing by, saw Ratnakara and took him under his own care. Under the love and care of his foster parents, Ratnakara forgot his original parents. Under his father 's guidance, Ratnakara turned out to be an excellent hunter. As he approached marriageable age, Ratnakara was married to a beautiful girl from hunter 's family.
As his family grew larger, Ratnakara found it next to impossible to feed them. As a result, he took to robbery and began looting people passing from one village to another.
One day, the great sage Narada, while passing through the jungle, was attacked by Ratnakara. As Narada played his Veena and sang praises of the Lord, he saw a transformation coming over Ratnakara. Then, he asked Ratnakara whether the family, for whom he was robbing others, will partake in his sins also. Ratnakara went to ask the same question to his family and on being refused by all his family members, he went back to sage Narada. Narada taught him the sacred name of 'Rama ' and asked him to sit in meditation, chanting the name of Rama, till the time Narada came back.
Ratnakara followed the instructions and kept sitting in a meditative posture for years, during which his body got completely covered by an anthill. At last, Narada came to see him and removed all the anthills from his body. Then, he told Ratnakara that his tapasya (meditation) paid off and the God was pleased with him. Ratnakara was bestowed with the honor of a Brahmarshi and given the name of Valmiki, since he was reborn from the Valmika (the ant-hill). Sage Valmiki founded his ashram at the banks of River Ganga.
Chapter Five
Reformative Approach
In Narotam Singh v. State of Punjab the Supreme Court has taken the following view: “Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”
Legal arguments
Arguments based on International and municipal laws may be advanced as under:
I). Death penalty violates the constitutional guarantee of equal protection because inherently all murders are same, but only a few offenders are sent to gallows. While some are not given capital punishment, others even after judicial pronouncement escape the noose by getting the pardon, commutation, etc. by the President or Governors.
II). Section 354(3) of Code of Criminal Procedure, 1973, gives too wide a discretion to the judges without proper and adequate legislative guidelines.
III). India being a party to the Stockholm Declaration of 1977 was committed to abolish the death penalty.
Arguments based on theories of punishments
A theory of punishment can be best defined as the approach or reaction of the penologists towards a perpetrator of crime while deciding the question of sentence to him.
Community sentences can be a variety of things including probation, where an offender 's behavior is monitored closely by the state, and community service orders, where an offender repays his debt to the community in labour.
That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety.”
Chapter Six
CONCLUSION
This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community. The reformation generally takes place either through probation or parole as measures for reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of hardened criminals this theory may not work with the effectiveness. In these cases come the importance of the deterrence theories and the retributive theories. Though the reformative theory relies upon humanitarian modes of punishment, but these have a weakness against the hardcore criminals. Though this theory of the punishment discussed above may seem perfect if used collectively, but this becomes a mere joke when tried to implicate in the practical sense. The understanding suggests that offences need to be legally defined as suitable or unsuitable for non-custodial or community sentences. Murder, drug trafficking and rape could not for example be punished by imposing a community sentence on the offender. Only small offences like petty theft or common assault are recommended for alternative sentencing by the report. Punishment according to the reformative theory is seen as reforming or rehabilitating the offender but not to destroy them.
BIBLIOGRAPHY
Articles:
1. FROM RETRIBUTION TO PREVENTION AND SOCIAL RESTORATION by L. HAROLD DE WOLF 2. REDEMPTION TO REFORM: THE INTELLECTUAL ORIGINS OF THE PRISON REFORM MOVEMENT by JAMESJ BEHA 3. THEORIES OF PUNISHMENT by MARI PRIVETTE 4. THEORIES OF PUNISHMENT-A SOCIO-LEGAL VIEW by Shaswata Dutta 5. An Eye for an Eye Will Turn the Whole World Blind - In Special Context to Reformative theories of punishment by Rustam Singh Thakur
Books: 1. Philosophical Perspectives on Punishment By Gertrude Ezorsky 2. Principles and Theory of Political Science By Urmila Sharma & S.K. Sharma 3. Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the By Mark Colvin
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[ 2 ]. Sue Rex & Michel Trony, "Reform and Punishment" Willian Publishing
[ 3 ]. Ratan Lal v State Of Rajasthan and Ors; 2007 CriLJ 2467
[ 4 ]. Ibid.
[ 5 ]. Shaswata Dutta, 'Theories Of Punishment - A Socio-Legal View ' At www.legalserviceindia.com/Articles/Pun_ Theo.htm accessed on 3rd January, 2011
[ 6 ]. Seamus Breathnach, "Emile Durkhiem on Crime and Punishment (An exegesis).
[ 7 ]. A quotation from Exodus, 21:23 - 27.
[ 8 ]. Bishnu Dayal v State Of West Bengal; 1979 Air 964,
[ 9 ]. Ranka Sahu v State Of Orissa; 1995 II OLR 1
[ 10 ]. Article on theories of punishment: socio-legal view by shaswata Dutta
[ 11 ]. THE ORIGINS AND EVOLUTION OF LEX TALIONIS By Farid Hekmat
[ 12 ]. Lex Talionis in Exod 21:22–25: Its Origin and Context www.jhsonline.org/Articles/article_53.pdf
[ 13 ]. Principles and Theory of Political Science by Urmila Sharma & S.K.Sharma pp, 311
[ 14 ]. A. Flew. “The justification of punishment” in philosophy, vol. XXIX (1954), pp, 291-307.
[ 15 ]. See, e.g., SANFORD H. KADISH & STEPHENJ. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 101 (7th ed. 2001);JOHN KAPLAN ET AL., CIUMINAL LAW: CASES ANDS MATERIALS 27-65 (5th ed. 2004); LLOYD L. WEINREB, CRIMINAL LAW 326-34 (7th ed. 2003)
[ 16 ]. Gaur, K D, Criminal Law: Cases and Materials, 3rd Ed., Butterworths India, New Delhi, 1995, p. 295.
[ 17 ]. (1996) 2 SCC 175
[ 18 ]. Paranjape, N V, 'Criminology and Penology ', 11th Ed., Central Law Publications, Allahabad, 2001, p.184.
[ 19 ]. [PDF]
[ 20 ]. RETRIBUTIVE THEORIES OF PUNISHMENT people.cohums.ohio-state.edu/hubin1/.../Retributive Punishment
[ 21 ]. INCAPACITATION THEORY by —Alana Barton
[ 22 ]. id
[ 23 ]. http://marisluste.files.wordpress.com/2010/11/incapacitation-theory.pdf
[ 24 ]. http://marisluste.files.wordpress.com/2010/11/incapacitation-theory.pdf
[ 25 ]. http://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf —Ihekwoaba D. Onwudiwe, Jonathan Odo, and Emmanuel C. Onyeozili (11/12/2012)
[ 26 ]. AIR 1978 SC 1542.
[ 27 ]. Criminal manual, universal law publishing co. pvt ltd.2004
[ 28 ]. ILR 1993 KAR 782 Gangoji Rao Salanke vs State
[ 29 ]. 2006 (1) WLC 31 Pappu Khan vs State Of Rajasthan And Ors.
[ 30 ]. Katherine S. Williams, “Textbook on Criminology” 4th edition, Oxford University Press.
Bibliography: [ 5 ]. Shaswata Dutta, 'Theories Of Punishment - A Socio-Legal View ' At www.legalserviceindia.com/Articles/Pun_ Theo.htm accessed on 3rd January, 2011 [ 6 ] [ 17 ]. (1996) 2 SCC 175 [ 18 ] [ 25 ]. http://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf —Ihekwoaba D. Onwudiwe, Jonathan Odo, and Emmanuel C. Onyeozili (11/12/2012) [ 26 ] [ 29 ]. 2006 (1) WLC 31 Pappu Khan vs State Of Rajasthan And Ors.
INTRODUCTION
This line by Mahatma Gandhi is the thrust of the Reformative Theory of Punishment . The most recent and the most humane of all theories are based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crime. Reform in the deterrent sense implied that through being punished the offender recognized his guilt and wished to change. This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of a hardened criminal this theory may not work with the effectiveness.
"Crime is behaviour or action that is punishable by criminal law. A crime is a public wrong, as opposed to a moral, wrong; it is an offence committed against (and hence punishable by) the state or the community at large. Many crimes are immoral, but not all actions considered immoral are illegal." According to Durkheim, "crime exists in every society which do and do not have laws, courts and the police. He asserts that all societies have crime, since all societies involve a differentiation between two kinds of actions, those that are allowed and those that are forbidden. He calls the latter type criminals."
The theory of criminal justice is the branch of philosophy of law that deals with criminal justice and in particular punishment. It has deep connections to other areas of philosophy, such as political philosophy and ethics, as well as to criminal justice in practice. Reformative theory forms a crucial part of the theory of criminal justice. This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community. The reformation generally takes place either through probation or parole as measures for reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of hardened criminals this theory may not work with the effectiveness. In these cases come the importance of the deterrence theories and the retributive theories. Thus each of these four theories has their own pros and cons and each being important in it, none can be ignored as such. Reform theory argues that the amount of punishment should be enough to cause reform in the offender. Reaction to crimes has been different at different stages of civilization and even at a given time they have been different in different society at a given time. The attitude towards criminal has always been coloured by extreme types of emotions displayed by society. In words of Elmer Hubert Johnson11 the criminal may be described as monster or be pictured as a hunted animal or as the helpless victim of brutality.
Chapter Two
CONCEPT OF LEX TALIONIS
An eye for an eye is the principle that a person who has injured another person is similarly injured in retribution, or according to other interpretations the victim receives the value of the injury in compensation. According to Jewish interpretations the victim in criminal law gets financial compensation based on the law of human equality eschewing mutilation and 'lex talionis. The English word talion means a retaliation authorized by law, in which the punishment corresponds in kind and degree to the injury, from the Latin talio. The phrase "an eye for an eye" is sometimes trivially referred to the Latin term lex talionis, the law of talion.
"Can punishment be in form of reform": an age-old controversy? 'Hate the crime and not the criminal ' very rightly said by Mahatma Gandhi. Whatever be the ultimate aim of punishment in the first instance it is the imposition on an evil. Any power of punishment to reform is widely and strongly denied on the dual grounds of principle and of experience. Experiments have shown that punishment ordinarily do it reform. On the contrary it often degrades coleuses and brutalizes. Men commonly come out of prison worse, than they went in. Punishment tends to search for an answer but more often ends up raising more questions.
The term lex talionis does not always and only refer to literal eye-for-an-eye codes of justice (see rather mirror punishment) but applies to the broader class of legal systems that specify formulaic penalties for specific crimes, which are thought to be fitting in their severity. Some propose that this was at least in part intended to prevent excessive punishment at the hands of either an avenging private party or the state. The most common expression of lex talionis is "an eye for an eye", but other interpretations have been given as well. Legal codes following the principle of lex talionis have one thing in common: prescribed 'fitting ' counter punishment for an offence. In the famous legal code written by Hammurabi, the principle of exact reciprocity is very clearly used. For example, if a person caused the death of another person, the killer would be put to death.
Under the right conditions, such as the ability for all actors to participate in an iterative fashion, the "eye for an eye" punishment system has a mathematical basis in the tit for tat game theory strategy.
The simplest example is the "eye for an eye" principle. In that case, the rule was that punishment must be exactly equal to the crime. Conversely, the twelve tables of Rome merely prescribed particular penalties for particular crimes. The Anglo-Saxon legal code substituted payment of wergild for direct retribution: a particular person 's life had a fixed value, derived from his social position; any homicide was compensated by paying the appropriate wergild, regardless of intent. Under the British Common Law, successful plaintiffs were entitled to repayment equal to their loss (in monetary terms). In the modern tort law system, this has been extended to translate non-economic losses into money as well. The meaning of the principle Eye for an Eye is that a person who has been injured by another person returns the offending action to the originator in compensation, or that an authority does so on behalf of the injured person. The exact Latin (lex talionis) to English translation of this phrase is actually "The law of retaliation." At the root of this principle is that purposes of the law is to provide equitable retribution.
It should, however, be borne in mind that reformative idea must be kept within sensible limits. In its extreme application, the reformative idea will not secure its goal and might lead, as farce reformation should go hand in hand with retribution and deterrence. A certain amount of terror is also desirable, and at times, evens necessary. So the idea of deterrence cannot be ignored. Deterrence cannot be wholeheartedly and completely substituted by reformation pure and sole. The perfect blend of deterrence and reformation can be seen in Indian Jurisprudence. Some of the legislative provisions, which deal with reformative concept, are Reformative schools act, 1897 and Juvenile Justice Act, 2000(amended).
Inception of the concept:
Various ideas regarding the origins of lex talionis exist, but a common one is that it developed as early civilizations grew and a less well-established system for retribution of wrongs, feuds andvendettas, threatened the social fabric. Despite having been replaced with newer modes of legal theory, lex talionis systems served a critical purpose in the development of social systems — the establishment of a body whose purpose was to enact the retaliation and ensure that this was the only punishment. This body was the state in one of its earliest forms.
The principle is found in Babylonian Law. It is surmised that in societies not bound by the rule of law, if a person was hurt, then the injured person (or their relative) would take vengeful retribution on the person who caused the injury. The retribution might be much worse than the crime, perhaps even death. Babylonian law put a limit on such actions, restricting the retribution to be no worse than the crime, as long as victim and offender occupied the same status in society, while punishments were less proportional with disputes between social strata: like blasphemy or laesa maiestatis (against a god, viz., monarch, even today in certain societies), crimes against one 's social better were systematically punished as worse.
Roman law moved toward monetary compensation as a substitute for vengeance. In cases of assault, fixed penalties were set for various injuries, although talio was still permitted if one person broke another 's limb.
Position of lex talionis under the domain of religion
Lex talionis in Christianity
Christian interpretation of the Biblical passage has been heavily influenced by the Church father St. Augustine. He already discussed in his Contra Faustum, Book XIX, the points of 'fulfilment or destruction ' of the Jewish law. George Robinson characterizes the passage of Exodus ("an eye for an eye") as one of the "most controversial in the Bible". According to Robinson, some have pointed to this passage as evidence of the vengeful nature of justice in the Hebrew Bible. Similarly, Abraham Bloch speculates that the "lex talionis has been singled out as a classical example of biblical harshness." Stephen Wylen asserts that the lex talionis is "proof of the unique value of each individual" and that it teaches "equality of all human beings for law." In the Sermon on the Mount), Jesus of Nazareth urges his followers to turn the other cheek rather than to seek legal steps for any compensation that corresponds in kind and degree to the injury.
You have heard that it was said, "An eye for an eye and a tooth for a tooth". But I say to you, do not resist an evildoer. If anyone strikes you on the right cheek, turn to him the other also. This saying of Jesus is frequently interpreted as criticism of the Old Testament teaching, and often taken as implying that "an eye for an eye" encourages excessive vengeance rather than an attempt to limit it. Lex talionis in Islam
The Qur 'an mentions the "eye for an eye" concept as being ordained for the Children of Israel.[18] The principle of Lex talionis in Islam is Qasas as mentioned in "O you who have believed, prescribed for you is legal retribution (Qasas) for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment." Some Muslim nations, still apply the rule, in accordance with the Mosaic Law. In some countries that use Islamic law (sharia), the "eye for an eye" rule is applied quite literally.
“In the Torah We prescribed for them a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds. Those who do not judge according to what God has revealed are doing grave wrong.”
Chapter Three
CONCEPT OF PUNISHMENT
The word ‘punishment’ literally means torture that a person should undergo on account of doing a wrong. It can be seen from a religious or an ethical point of view. ‘The religious injunction is that the god being the ruler of this world punishes those who break his laws. The mills a god grind surely though slowly’. A person should always act according to his beat rational judgment. If he makes a wrong by default, he should correct it by undergoing a self imposed penance or remorse.
Prof. flew has suggested five criteria for the use of the word punishment in its primary sense: 1. It must involve an evil or an unpleasantness to the victim. 2. It must be for an actual or supposed offence. 3. It must be for an actual or supposed offender. 4. It must be the work of personal agencies (i.e., not merely the natural consequences of an action.) 5. It must be imposed by an authority (real or supposed) conferred by the system of rules against which the offence has been committed.
In this context questions about the proper justification for punishment, particularly incarceration, are as old as the criminal law. In the classic textbook Explication, there are four competing, sometimes complementary, rationales offered for criminal punishment: retribution, deterrence, incapacitation, and rehabilitation.
Punishment is the sanction imposed on a person for the infringement of the rules of society. It is primarily used as a method of protecting society by reducing the occurrence of criminal behaviour. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society 's cry for justice against the criminal."
In Ravji v State of Rajasthan, a Division Bench observed that 'it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial '. A dispassionate analysis of criminological jurisprudence would reveal that capital punishment is justified only in extreme cases in which a high degree of culpability is involved causing grave danger to society.Society has resorted to many different methods in executing criminals and other allegedly dangerous persons in the past e.g. drowning, stoning to death, burning at the stake and beheading etc. These methods, however, appear barbaric especially in comparison to the seemingly sanitized, quick, and painless procedure of death by lethal injections, the most commonly used method of execution in contemporary America.
TYPES OF PUNISHMENT * Retribution:
Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best response to crime. When an offender breaks the law, s/he thereby forfeits or suspends her/his right to something of equal value, and justice requires that this forfeit be enacted. This is sometimes taken to mean that justice involves seeking vengeance on behalf of the aggrieved party, or society as a whole.
In ethics and law, "Let the punishment fit the crime" is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction. The concept is common to most cultures throughout the world. Its presence in the ancient Jewish culture is shown by its inclusion in the law of Moses, specifically in Deuteronomy , and Exodus which includes the punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." That phrasing in turn resembles the older Code of Hammurabi. Many other documents reflect this value in the world 's cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly between cultures and individuals.
Proportionality requires that the level of punishment be scaled relative to the severity of the offending behavior. However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. For utilitarian’s, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has been committed and carried out to atone for the damage already done.
Criticism:
Many more jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factors, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed individual and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire. In some countries, such as Finland, fines are fixed as percentages of the offender’s personal income, rather than a certain dollar amount. This allows for the law to remain fair, in that is applies to all citizens equally, yet prevents the wealthy from simply paying to break the law without suffering any substantial punishment.
* Rehabilitation:
Rehabilitation means to restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity.
The assumption of rehabilitation is that people are not permanently criminal and that it is possible to restore a criminal to a useful life, to a life in which they contribute to themselves and to society. A goal of rehabilitation is to prevent habitual offending, also known as criminal recidivism. Rather than punishing the harm out of a criminal, rehabilitation would seek, by means of education or therapy, to bring a criminal into a more normal state of mind, or into an attitude which would be helpful to society, rather than be harmful to society.
This theory of punishment is based on the notion that punishment is to be inflicted on an offender so as to reform him/her, or rehabilitate them so as to make their re-integration into society easier. Punishments that are in accordance with this theory are community service, probation orders, and any form of punishment which entails any form of guidance and aftercare towards the offender.
This theory is founded on the belief that one cannot inflict a severe punishment of imprisonment and expect the offender to be reformed and to be able to re-integrate into society upon his/her release. Indeed, the United States Code states that sentencing judges shall make imprisonment decisions "recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation".[1] Although the importance of inflicting punishment on those persons who breach the law, so as to maintain social order, is retained, the importance of rehabilitation is also given priority. Humanitarians have, over the years, supported rehabilitation as an alternative, even for capital punishment.
Criticism:
Rehabilitation theories present however the following deficiencies:
First, there is no sound scientific research to determine how different individuals react to the same rehabilitating methods. Second, rehabilitation may depend more decisively on the individual psychological background, hence on his particular motives to commit crimes, than on the rehabilitating methods or philosophy.
Third, a rehabilitation program may prove to be too costly and complex to be successfully implemented in most countries.
Finally, rehabilitation must refer to the sociological findings on the socialization and resocialization processes, as change in lifelong socially acquired patterns of behavior and values entails a much more complex – and sometime traumatic – change on the individual 's structure of character. * Incapacitation
Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing (rather than merely deterring) future offending.
Imprisonment incapacitates the prisoner by physically removing them from the society against which they are deemed to have offended. Long term imprisonment with the intention to incapacitate is often used by criminal justice systems against habitual criminals who recidivate.
Incapacitation is a reductivist (or “forward looking”) justification for punishment. Reductivism is underpinned by the theory of moral reasoning known as utilitarianism, which maintains that an act is defensible and reasonable if its overall consequences are beneficial to the greatest number of people. Thus, the pain or suffering imposed on an offender through punishment is justified if it reduces or prevents the further harm that would have been caused to the rest of society by the future crimes of that offender. The concern here is with the victim, or potential victim. The rights of the offender merit little consideration. Incapacitation has long been a significant strategy of punishment. For example, in Britain during the 18th and 19th centuries, convicted offenders were often transported to Australia and the Americas. In the 21st century, the physical removal of offenders from society remains the primary method of incapacitation in most contemporary penal systems. This usually takes the form of imprisonment, although other methods of incapacitation are in operation. The most severe and permanent form of incapacitation is capital punishment. Capital punishment is often justified through the concept of deterrence, but whether the death sentence actually deters potential offenders is highly contested. What is indisputable is that once put to death an individual is incapable of committing further offenses. Capital punishment is therefore undeniably “effective” in terms of its incapacitative function.
Other types of severe or permanent incapacitative punishments include dismemberment, which is practiced in various forms. For example, the physical or chemical castration of sex offenders has been used in some Western countries, notably North America. Less severe forms of incapacitation are often concerned with restricting rather than completely disabling offenders from reoffending. These include sentences such as disqualification from driving or curfews. In the United Kingdom, attendance center orders are used for individuals under the age of 21. Their aim is to restrict the leisure time of offenders by requiring them to attend a center in order to engage in some form of activity for a specified number of hours.
However, as mentioned above, the primary method of incapacitation is imprisonment. As with capital punishment, incapacitation in the form of imprisonment is considered to be a strategy that
“works” because, for the duration of their prison sentence, offenders are restricted from committing crimes within the community.
So, according to this theory, punishment is not concerned with the nature of the offender, as is the case with rehabilitation, or with the nature of the offense, as is the case with retribution. Rather, punishment is justified by the risk individuals are believed to pose to society in the future.
As a result, individuals can be punished for “hypothetical” crimes. In other words, they can be incarcerated, not for crimes they have actually committed but for crimes it is anticipated or assume they will commit.
Criticism:
The use of incapacitation as a justification for punishment can be inherently problematic in both theory and practice. First, incapacitative sentences such as the three-strikes principle effectively repunish individuals for previous crimes. Alternatively, sentences based on selective incapacitation punish individuals for crimes not yet committed. There is an inherent risk with selective incapacitation that some of the individuals who are identified as “dangerous,” and thus incarcerated, would not have gone on to offend. However, even if the methods of prediction were accurate, there are naturally moral and ethical questions about incarcerating individuals for what they may do rather than what they have actually done. Incapacitative sentences also maintain and legitimize structural divisions within society. U.S. sociologist Christian Parenti comments that the excessive use of incarceration in the United States is indicative of a growing class-based, racial intolerance. The three-strikes principle, as with imprisonment in general, is disproportionately applied to minorities and the poor. While African Americans make up only 7% of the Californian population, for example, they constitute 31% of the state prison population and 44% of its “three-striker” population. At the same time, a penal strategy based around the concept of incapacitation places no emphasis on the crimes of the powerful. So white-collar, corporate, and environmental crimes, which are more costly and, some would argue, more harmful to society, are overlooked. The emphasis instead is placed on street crime, which is disproportionately committed by the young and the poor.
Finally, incapacitative sentences, which are frequently dispensed to young people, take no account of the fact that most individuals “grow out” of their criminal activity. Many “criminal careers” do not last beyond the late teen years. Thus, long sentences without the possibility of parole make no allowance for the transitory nature of much law breaking. * Deterrence:
Proponents of deterrence believe that people choose to obey or violate the law after calculating the gains and consequences of their actions. Overall, however, it is difficult to prove the effectiveness of deterrence since only those offenders not deterred come to the notice of law enforcement. Thus, we may never know why others do not offend.
There are two basic types of deterrence—general and specific. General deterrence is designed to prevent crime in the general population. Thus, the state’s punishment of offenders serves as an example for others in the general population who have not yet participated in criminal events. It is meant to make them aware of the horrors of official sanctions in order to put them off committing crimes. Examples include the application of the death penalty and the use of corporal punishment. Since general deterrence is designed to deter those who witness the infliction of pains upon the convicted from committing crimes themselves, corporal punishment was traditionally, and in some places is still, carried out in public so that others can witness the pain. Although outlawed in the United States, public punishment is still used in other countries. For instance, in August 2001, Nigeria introduced shari’a, or Islamic law, that allows the application of corporal punishment. That same month, Iran sentenced 20 people to be caned for consuming alcohol. In November 2001, Saudi Arabia lashed 55 youths for harassing women. Likewise, Human Rights Watch reports that under Saddam Hussein’s regime in Iraq, those who violated military orders or committed other crimes could be punished by amputation of arms, legs, and ears. Finally, in England and the United States, hangings were once carried out in public. The public and family members were allowed to attend so that they could see what happened to those who broke the law. Today, some advocates call for televised executions as a way of deterring murder.
Specific deterrence is designed—by the nature of the proscribed sanctions—to deter only the individual offender from committing that crime in the future. Proponents of specific deterrence also believe that punishing offenders severely will make them unwilling to reoffend in the future. A drunk driver, for example, would be deterred from drinking and driving because of the unpleasant experience he or she suffered from being arrested, or having his or her license taken away or his or her car impounded. The state must apply enough pain to offset the amount of pleasure derived from drinking.
Criricism:
Deterrence theory is criticized for its assumptions about opponent rationales.
First, it is argued that suicidal or psychotic opponents may not be deterred by either forms of deterrence.
Second, if two enemy states both possess nuclear weapons, Country "X" may try to gain a first strike advantage by suddenly launching weapons at Country "Y", with a view to destroying its enemy 's nuclear launch silos thereby rendering Country "Y" incapable of a response.
Third, diplomatic misunderstandings and/or opposing political ideologies may lead to escalating mutual perceptions of threat, and a subsequent arms race which elevates the risk of actual war — a scenario illustrated in the movies WarGames and Dr. Strangelove. An arms race is inefficient in its optimal output, as all countries involved expend resources on armaments that would not have been created if the others had not expended resources. This is a form of positive feedback. Fourth, escalation of perceived threat can make it easier for certain measures to be inflicted on a population by its government, such as restrictions on civil liberties, the creation of a military–industrial complex, and military expenditures resulting in higher taxes and increasing budget deficits.
Chapter Four
PUNISHMENT IN THE INDIAN AND GREEK CONTEXT
Greek:
Beginning with the time of Homer in the tenth century before Christ, the same view prevailed as is found in all peoples at this stage prior to the refinements, cultural and scientific, which are deemed civilized. The unit of punishment was the household wherein the master had the right to penalize to the extent of killing, and the duty to avenge its wronged members. It is not conceptually difficult for a transition to be made from this to the State as a punitive and protective body, while, under Christianity the process is reversed from the collectivism of family guilt to the individual.
Plato:
Plato 's over-all view of punishment may be found in Gorgias wherein he states:
Now the proper office of punishment is two-fold: he who is rightly punished ought either to become better and profit by it, or he ought to be made an example to his fellows, that they may see what he suffers, and fear and become better. Those who are improved when they are punished, are those whose sins are curable; and they are improved by pain and suffering; for there is no other way in which they can be delivered from the evil.
Aristotle:
Though perhaps weighted differently, all the present-day theories of punishment may be found in Plato: retribution in the sense of recompense, of a deserved punishment with or without religious connotations; deterrence in the sense of punishment primarily inflicted for its exemplary nature; and reformation, containing the treatment theory. Modern, too, is Plato 's punishment of the criminal and over-all (with some contradictions) rejection of retaliation, the punishment of the crime, embodied in the Hammurabic and Mosaic Codes as lex talonis, prevalent among the primitive. His ideas of expiation are primitive in the sense of a stain of blood on the entire family and the pollution of the group; Christian in the theory of penance for guilt; non-primitive in the State 's acting officially and punishment by the corporate body. That an individual may be sacrificed in the interest of society is common to all groups, with the extermination of the incurable practiced today although rationalized differently. However, an aspect of punishment which remained to be treated more fully was its justification. This was Aristotle 's great contribution, and was derived from an application of the golden mean in conjunction with a duality of voluntary and involuntary. Only voluntary wrongs will be punished, but the State 's right to punish emanates from an involuntary contract created by the wrongdoer in disrupting equality.
Indian:
The Hindu jurisprudence or the legal system (Vyavahara Dharmashastra) is embedded in Dharma as propounded in the Vedas, Puranas, Smritis and other works on the topic. The word ‘dharma’ has wide varieties of meanings. A few of them would enable us to understand the width of that expression. For instance, the word Dharma is used to mean justice (nyaya), what is right in a given circumstance, moral, religion, pious or righteous conduct, being helpful to living beings, giving charity or alms, natural qualities or characteristics or properties of living beings and things, duty, law and usage or custom having the force of law, and also a valid Rajashasana (royal edict).
Manu on punishment:
According to Manu punishment was suggested by the sages in order to curve unrighteousness and to preserve righteousness hampered. He envisaged the idea of matsyananyaya without the system of punishment. Vishnu has pointed out that a king should show honour to the righteous and inflict punishment on the unrighteous. He further adds where punishment with a black hue and a red aye advances with irresistible might the king deciding causes justly, there the people will prosper.
Kautilya’s Arthashastra:
Whoever imposes severe punishment becomes repulsive to the people; while he who awards mild punishment becomes contemptible. But whoever imposes punishment as deserved becomes respectable. For punishment when awarded with due consideration, makes the people devoted to righteousness and to works productive of wealth and enjoyment; while punishment, when ill-awarded under the influence of greed and anger or owing to ignorance, excites fury even among hermits and ascetics dwelling in forests, not to speak of householders.
Example of Transformation in Indian history
Maharishi Valmiki’s story:
Maharishi Valmiki was born as Ratnakara to sage Prachetasa. At a very young age, Ratnakara went into the forest and got lost. A hunter, who was passing by, saw Ratnakara and took him under his own care. Under the love and care of his foster parents, Ratnakara forgot his original parents. Under his father 's guidance, Ratnakara turned out to be an excellent hunter. As he approached marriageable age, Ratnakara was married to a beautiful girl from hunter 's family.
As his family grew larger, Ratnakara found it next to impossible to feed them. As a result, he took to robbery and began looting people passing from one village to another.
One day, the great sage Narada, while passing through the jungle, was attacked by Ratnakara. As Narada played his Veena and sang praises of the Lord, he saw a transformation coming over Ratnakara. Then, he asked Ratnakara whether the family, for whom he was robbing others, will partake in his sins also. Ratnakara went to ask the same question to his family and on being refused by all his family members, he went back to sage Narada. Narada taught him the sacred name of 'Rama ' and asked him to sit in meditation, chanting the name of Rama, till the time Narada came back.
Ratnakara followed the instructions and kept sitting in a meditative posture for years, during which his body got completely covered by an anthill. At last, Narada came to see him and removed all the anthills from his body. Then, he told Ratnakara that his tapasya (meditation) paid off and the God was pleased with him. Ratnakara was bestowed with the honor of a Brahmarshi and given the name of Valmiki, since he was reborn from the Valmika (the ant-hill). Sage Valmiki founded his ashram at the banks of River Ganga.
Chapter Five
Reformative Approach
In Narotam Singh v. State of Punjab the Supreme Court has taken the following view: “Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”
Legal arguments
Arguments based on International and municipal laws may be advanced as under:
I). Death penalty violates the constitutional guarantee of equal protection because inherently all murders are same, but only a few offenders are sent to gallows. While some are not given capital punishment, others even after judicial pronouncement escape the noose by getting the pardon, commutation, etc. by the President or Governors.
II). Section 354(3) of Code of Criminal Procedure, 1973, gives too wide a discretion to the judges without proper and adequate legislative guidelines.
III). India being a party to the Stockholm Declaration of 1977 was committed to abolish the death penalty.
Arguments based on theories of punishments
A theory of punishment can be best defined as the approach or reaction of the penologists towards a perpetrator of crime while deciding the question of sentence to him.
Community sentences can be a variety of things including probation, where an offender 's behavior is monitored closely by the state, and community service orders, where an offender repays his debt to the community in labour.
That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety.”
Chapter Six
CONCLUSION
This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community. The reformation generally takes place either through probation or parole as measures for reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of hardened criminals this theory may not work with the effectiveness. In these cases come the importance of the deterrence theories and the retributive theories. Though the reformative theory relies upon humanitarian modes of punishment, but these have a weakness against the hardcore criminals. Though this theory of the punishment discussed above may seem perfect if used collectively, but this becomes a mere joke when tried to implicate in the practical sense. The understanding suggests that offences need to be legally defined as suitable or unsuitable for non-custodial or community sentences. Murder, drug trafficking and rape could not for example be punished by imposing a community sentence on the offender. Only small offences like petty theft or common assault are recommended for alternative sentencing by the report. Punishment according to the reformative theory is seen as reforming or rehabilitating the offender but not to destroy them.
BIBLIOGRAPHY
Articles:
1. FROM RETRIBUTION TO PREVENTION AND SOCIAL RESTORATION by L. HAROLD DE WOLF 2. REDEMPTION TO REFORM: THE INTELLECTUAL ORIGINS OF THE PRISON REFORM MOVEMENT by JAMESJ BEHA 3. THEORIES OF PUNISHMENT by MARI PRIVETTE 4. THEORIES OF PUNISHMENT-A SOCIO-LEGAL VIEW by Shaswata Dutta 5. An Eye for an Eye Will Turn the Whole World Blind - In Special Context to Reformative theories of punishment by Rustam Singh Thakur
Books: 1. Philosophical Perspectives on Punishment By Gertrude Ezorsky 2. Principles and Theory of Political Science By Urmila Sharma & S.K. Sharma 3. Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the By Mark Colvin
--------------------------------------------
[ 2 ]. Sue Rex & Michel Trony, "Reform and Punishment" Willian Publishing
[ 3 ]. Ratan Lal v State Of Rajasthan and Ors; 2007 CriLJ 2467
[ 4 ]. Ibid.
[ 5 ]. Shaswata Dutta, 'Theories Of Punishment - A Socio-Legal View ' At www.legalserviceindia.com/Articles/Pun_ Theo.htm accessed on 3rd January, 2011
[ 6 ]. Seamus Breathnach, "Emile Durkhiem on Crime and Punishment (An exegesis).
[ 7 ]. A quotation from Exodus, 21:23 - 27.
[ 8 ]. Bishnu Dayal v State Of West Bengal; 1979 Air 964,
[ 9 ]. Ranka Sahu v State Of Orissa; 1995 II OLR 1
[ 10 ]. Article on theories of punishment: socio-legal view by shaswata Dutta
[ 11 ]. THE ORIGINS AND EVOLUTION OF LEX TALIONIS By Farid Hekmat
[ 12 ]. Lex Talionis in Exod 21:22–25: Its Origin and Context www.jhsonline.org/Articles/article_53.pdf
[ 13 ]. Principles and Theory of Political Science by Urmila Sharma & S.K.Sharma pp, 311
[ 14 ]. A. Flew. “The justification of punishment” in philosophy, vol. XXIX (1954), pp, 291-307.
[ 15 ]. See, e.g., SANFORD H. KADISH & STEPHENJ. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 101 (7th ed. 2001);JOHN KAPLAN ET AL., CIUMINAL LAW: CASES ANDS MATERIALS 27-65 (5th ed. 2004); LLOYD L. WEINREB, CRIMINAL LAW 326-34 (7th ed. 2003)
[ 16 ]. Gaur, K D, Criminal Law: Cases and Materials, 3rd Ed., Butterworths India, New Delhi, 1995, p. 295.
[ 17 ]. (1996) 2 SCC 175
[ 18 ]. Paranjape, N V, 'Criminology and Penology ', 11th Ed., Central Law Publications, Allahabad, 2001, p.184.
[ 19 ]. [PDF]
[ 20 ]. RETRIBUTIVE THEORIES OF PUNISHMENT people.cohums.ohio-state.edu/hubin1/.../Retributive Punishment
[ 21 ]. INCAPACITATION THEORY by —Alana Barton
[ 22 ]. id
[ 23 ]. http://marisluste.files.wordpress.com/2010/11/incapacitation-theory.pdf
[ 24 ]. http://marisluste.files.wordpress.com/2010/11/incapacitation-theory.pdf
[ 25 ]. http://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf —Ihekwoaba D. Onwudiwe, Jonathan Odo, and Emmanuel C. Onyeozili (11/12/2012)
[ 26 ]. AIR 1978 SC 1542.
[ 27 ]. Criminal manual, universal law publishing co. pvt ltd.2004
[ 28 ]. ILR 1993 KAR 782 Gangoji Rao Salanke vs State
[ 29 ]. 2006 (1) WLC 31 Pappu Khan vs State Of Rajasthan And Ors.
[ 30 ]. Katherine S. Williams, “Textbook on Criminology” 4th edition, Oxford University Press.
Bibliography: [ 5 ]. Shaswata Dutta, 'Theories Of Punishment - A Socio-Legal View ' At www.legalserviceindia.com/Articles/Pun_ Theo.htm accessed on 3rd January, 2011 [ 6 ] [ 17 ]. (1996) 2 SCC 175 [ 18 ] [ 25 ]. http://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf —Ihekwoaba D. Onwudiwe, Jonathan Odo, and Emmanuel C. Onyeozili (11/12/2012) [ 26 ] [ 29 ]. 2006 (1) WLC 31 Pappu Khan vs State Of Rajasthan And Ors.
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