Theories of Punishment

 

DETERRENT THEORY

  • Salmond considers the deterrent aspect of punishment to be the most Important. Punishment is for all things deterrent and the chief end of the law of crime Is to make the evil doer an example and a warning to all that are like minded with him. The object of punishment is not only to prevent the wrongdoer from doing a wrong a second time but also to make him an example to other persons who Nave criminal tendencies.
  • Salmond asserted that offences are committed by reason of a conflict of interest of the offender and the society. Punishment prevents such offences by destroying the conflict of interests by making acts which are injurious to others as injurious to the doer himself.

RETRIBUTIVE THEORY

  • In Primitive Society, punishment was mainly retributive. The person wronged was allowed to nave his revenge against the wrongdoer. The principle of “an eye for an eye”, “a tooth for a tooth” was recognized and followed.
  • Justice Holmes writes – “it is commonly known that the early forms procedure was grounded in vengeance”.
  • Sir Walter Moberly defines it as drama of wrong doing and its retribution has indeed been unending fascination for the human kind. He further suggests that retributive punishment serves to express and satisfy the righteous indignation with which a healthy minded community regards transgression as an anti-social behavior.
  • Salmond rightly put it- “Revenge is the right of the Injured person. The penalty of wrong doing is a debt which the offender owes to his victim, and when the punishment has been endured, the debt is paid, the liability extinguished innocence is substituted for guilt and the Vinculum Juris forged by crime is dissolved. The object of true redress is to substitute justice for justice.

PREVENTIVE THEORY

  • Another object of punishment is preventive or disabling. The offenders are disabled from repeating the offences by such punishments as imprisonment, death, exile, forfeiture of office etc. By putting the criminal in jail, he is prevented from committing another crime.
  • Paton writes – “The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future. Death penalty and exile serve the same purpose of defending the offenders.
  • Justice Holmes writes- “There can be no case in which the law maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct.”
  • Preventive would accordingly seem to be the chief and only universal purpose of punishment
  • Fithe writes- “The end of all penal laws is that they are not to be applied” Thus a land owner puts a notice “trespassers will be prosecuted”.

REFORMATIVE THEORY

The reformative theory of punishment emphasizes on reformation of offences through the method of individualization. It is based on the on the humanistic approach that even if an offender commits a crime, he does not cease to be a human being. Therefore, an effort should be made to reform him during the period of his incarceration. While awarding the punishment, the judge must take into consideration the age and character of the offender, his ante cents and also the circumstances under which he committed the offending act. The theory suggests that punishment is only justifiable if it looks to the future and not to the past. It should not be regarded as setting an old account but rather as opening a new one.

THEORY OF COMPENSATION

According to this theory the object of punishment must be not merely to prevent further crimes but also to compensate the victim of the crime. The contention Is that the main spring of the criminality is greed and if the offender is made to return the ill-gotten benefits of the crime, the spring of criminality would dry up.

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