Why Punish?

Complied By:

Rohit Saraswat

B.A., LL.B (Hons.) III

Year

Contents Acknowledgement

Introduction

Punishment: Justification

Punishment, Crime and the State

Sociological Approach

Philosophical Approach

Theories of Punishment

Is Retribution a Revenge?

Punishment as Communication

Locus of Deterrence

Conclusion

Bibliography

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AcknowledgementI wish to express my sincere gratitude to Mr. D.K. Sharma for providing me an

opportunity to do my project work on “Why Punish?”

Last but not least I wish to avail myself of this opportunity, express a sense of

gratitude and love to my friends and my beloved parents for their manual support,

strength, help and for everything, importantly for being with me throughout.

Rohit Saraswat

B.A.,LL.b(Hons.)

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III Year

Introduction“Charge them with crime upon crime; do not let them share in your salvation”1.

‘Jails and prisons are the complement of schools; so many less as you have of the latter, so

many more must you have of the former’- Horace Mann

“Punishments governs all mankind; punishment alones preserve them; punishment wakes while

guards are asleep; the wise consider the punishment (danda) as the perfection of justice.”2

Does society have the right to punish?

Is the infliction of punishment morally justifiable?

These are few questions that comes to a layman’s mind when the idea or moreover a term called

‘Punishment’ resonates his ears. There are many situations in which people wish to punish

another. When a person is unjustly harmed through assault or robbery, people typically

experience a strong desire to punish the offender. From a psychological point of view, what is

the source of this motivation, the justification for this behavior? When people, as voters, jurors,

and citizens, exact punishment from a perpetrator for violating societal norms, what are they

trying to achieve? In short, why does society punish?

‘Punishment is the authoritative imposition of something negative or unpleasant on a person,

animal, organization or entity in response to behavior deemed unacceptable by an individual,

group or other entity.”3

The authority may be either a group or a single person, and punishment may be carried out

formally under a system of law or informally in other kinds of social settings such as within a

family. Negative consequences that are not authorized or that are administered without a breach

of rules are not considered to be punishment. If only some of the conditions included in the

1 Psalm 69:272 Institute of Hindu law Ch. 7, para 18, p 189.3 Urban Dictionary

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definition of punishment are present, descriptions other than "punishment" may be considered

more accurate. Inflicting something negative, or unpleasant, on a person or animal, without

authority is considered either ‘spite’ or ‘revenge’ rather than ‘punishment’.

In addition, the word "punishment" is used as a metaphor, as when a boxer experiences

"punishment" during a fight. In other situations breaking the rules may be rewarded, and is

therefore without negative consequences, and so cannot be considered punishment. Finally the

condition of breaking (or breaching) the rules must be satisfied to be considered punishment.

Punishments differ in the degree of severity of their unpleasantness, and may include sanctions

such as reprimands, deprivations of privileges or liberty, fines, incarcerations, ostracism, the

infliction of pain, and the death penalty.

Religious views towards the sins or the crimes an individual commit are also worth

acknowledgement. The concept of karma or the absolution is very common and highly

acknowledged.

“In those days people will no longer say, 'The fathers have eaten sour grapes, and the children's

teeth are set on edge.”4

This makes it clear that for each sins an individual commits its burden will be carried by that

person himself or rather the punishment or the sanction will be suffered by that wrongdoer only,

not by any of his close relations or any other person. Justifying the common idea “As you sow so

shall you reap.”

Punishments may be judged as fair or unfair in terms of their degree of reciprocity and

proportionality. Punishment can be an integral part of socialization, and punishing unwanted

behavior is often part of a system of pedagogy or behavioral modification which also includes

rewards.

The concept of punishment — its definition — and its practical application and justification

during the past half-century have shown a marked drift away from efforts to reform and

rehabilitate offenders in favor of retribution and incarceration. Punishment in its very conception

is now acknowledged to be an inherently retributive practice, whatever may be the further role of

4 Jeremiah 31:29

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retribution as a (or the) justification or goal of punishment. A liberal justification of punishment

would proceed by showing that society needs the threat and the practice of punishment, because

the goal of social order cannot be achieved otherwise and because it is unfair to expect victims of

criminal aggression to bear the cost of their victimization. Constraints on the use of threatened

punishments (such as due process of law) are of course necessary, given the ways in which

authority and power can be abused. Such a justification involves both deontological as well as

consequentialist considerations.

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Punishment: justificationThe central question asked by philosophers of punishment is: What can justify punishment?

More precisely, since they do not usually talk much about punishment in such contexts as the

family or the workplace, their question is:-

“What can justify formal, legal punishment imposed by the state on criminals?”

Focus is not just on legal punishment here: not because the other species of punishment do not

raise important normative questions (they do), nor because such questions can be answered in

terms of an initial justification of legal punishment as being the paradigm case (since it's not

clear that they can be), but because legal punishment, apart from being more dramatically

coercive and burdensome than other species of punishment usually are, raises distinctive issues

about the role of the state and its relationship to its citizens, and about the role of the criminal

law.

What then is to be justified in justifying punishment?

The search for a precise definition of punishment that exercised some philosophers is likely to

prove futile: but we can say that legal punishment involves the imposition of something that is

intended to be burdensome or painful, on a supposed offender for a supposed crime, by a person

or body who claims the authority to do so.

But, how can such a practice, which infringes the freedom of those subjected to it, which not

only causes but aims to cause them suffering, be justified?

It should not be assume, however, that there is only one question of justification, which can

receive just one answer.

As Hart once beckoned5 :-“We must distinguish at least three justificatory issues:-

First, what is the ‘general justifying aim’ of a system of punishment: what justifies the creation

and maintenance of such a system—what good can it achieve, what duty can it fulfill, what moral

5 H.L.A. Hart 1968: 1-27

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demand can it satisfy? Second, who may properly be punished: what principles or aims should

determine the allocations of punishments to individuals? Third, how should the appropriate

amount of punishment be determined: how should sentencers go about deciding what sentence to

impose? (One dimension of this third question concerns the amount or severity of punishment;

another, which is insufficiently discussed by philosophers, concerns the concrete modes of

punishment that should be available, in general or for particular crimes.)

It might of course turn out that answers to all these questions will flow from a single theoretical

foundation—for instance from a unitary consequentialist principle specifying the good that

punishment should achieve, or from some version of the retributivist principle that the sole

proper aim of punishment is to impose on the guilty the suffering they deserve. But, in this as in

other matters of normative political theory, matters might not be as easy and simple as that: we

might find that quite different and conflicting values are relevant to different issues about

punishment; and that any complete normative account of punishment will have to find a place for

these values—and to help us find some no doubt uncomfortable compromises between them

when they conflict.

Even this way of putting the matter oversimplifies it, by implying that we can hope to find a

‘complete normative account of punishment’: an account, that is, of how punishment can be

justified. That is certainly an implicit assumption of much philosophical and legal discussion:

punishment can—of course—be justified, and the theorists' task is to establish and explicate that

justification. But it is an illegitimate assumption: normative theorists must be open to the

possibility, startling and disturbing as it might be, that this pervasive human practice cannot be

justified. Nor is this merely the kind of fantastical disbelief that moral philosophers are

sometimes prone to imagine (‘suppose someone denied that killing for pleasure was wrong’):

there is a significant strand of ‘abolitionist’ penal theorising (to which insufficient attention is

paid in the philosophical literature) which argues precisely that legal punishment cannot be

justified and should be abolished.

The abolitionist claim is not merely that our existing penal practices are not justified: viewed in

the light of many normative penal theories (one might almost say, of any plausible normative

penal theory) our existing penal practices, especially those involving imprisonment (given the

actual nature of our prisons) or execution, are not merely imperfect, but so radically inconsistent

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with the values that should inform a practice of punishment that they cannot claim to be justified.

For those who think that punishment can in principle be justified, this means simply (and hardly

surprisingly) that our penal practices need radical reform if they are to become justified: but the

abolitionist critique goes much deeper than that, to argue that legal punishment cannot be

justified even in principle6.

We will attend to some abolitionist arguments in what follows. Even if those arguments can be

met, even if legal punishment can be justified, at least in principle, the abolitionist challenge is

one that must be met, rather than ignored; and it will help to remind us of the ways in which any

practice of legal punishment is bound to be morally problematic.

6e.g. Christie 1977, 1981; Hulsman 1986, 1991; Bianchi & van Swaaningen 1986; de Haan 1990; Zehr 1990; Van Ness 1993; Bianchi 1994; Walgrave 1994; Golash 1995. For critical discussions see Ashworth 1993; Duff 1996: 67-87; Johnstone 2002, 2003; von Hirsch et al 2003 is a useful collection

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Punishment, Crime and the State

‘Punishment is the last and least effective instrument in the hands of the legislator for the

prevention of crime’. -John Ruskin

Legal punishment presupposes crime as that for which punishment is imposed, and a criminal

law as that which defines crimes as crimes; a system of criminal law presupposes a state, which

has the political authority to make and enforce the law and to impose punishments.

A normative account of legal punishment and its justification must thus at least presuppose, and

should perhaps make explicit, a normative account of the criminal law (why should we have a

criminal law at all?) and of the proper powers and functions of the state (by what authority or

right does the state make and declare law, and impose punishments on those who break it?).

On a simple positivist view of law, crimes are kinds of conduct that are prohibited, on pain of

threatened sanctions, by the law; and for positivists like Bentham, who combine positivism with

a normatives, the questions of whether we should maintain a criminal law at all, and of what

kinds of conduct should be criminalised, are to be answered by trying to determine whether and

when this method of controlling human conduct is likely to produce a net increase in good.

Such a perspective seems inadequate, however: inadequate both to the claims of the criminal

law, which presents its demands as something other or more than those of a gunman writ large—

as something other or more than ‘Behave thus, or else!’; and to the normative issues at stake

when we ask what kinds of conduct should be criminalised.

For the criminal law portrays crime not merely as conduct which has been prohibited, but as a

species of wrongdoing: whether our inquiry is analytical (into the concept of crime) or normative

(as to what kinds of conduct, if any, should be criminal), we must therefore focus on that notion

of wrongdoing.

 Abolitionist concern is that by defining and treating conduct as ‘criminal’, the law ‘steals’ the

conflicts which crime involves from those to whom they properly belong7, instead of allowing,

and helping, those who find themselves in conflict to resolve their trouble, the law takes the

matter over and translates it into the professionalised context of the criminal justice system, in

7 Christie 1977

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which neither ‘victim’ nor ‘offender’ is allowed any appropriate or productive role. 

However, Faced, for instance, by feuding neighbours who persistently accuse each other of more

or less trivial wrongs, it might indeed be appropriate to suggest that they should forget about

condemning each other and look for a way of resolving their conflict. But faced by a rapist and

the person he raped, or by a violent husband and the wife he has been beating up, it would a

betrayal both of the victim and of the values to which we are supposedly committed to portray

the situation merely as a ‘conflict’ which the parties should seek to resolve: whatever else or

more we can do, we must recognise and declare that here is a victim who has been seriously

wronged; and we must be collectively ready to censure the offender's action as a wrong.

However, to argue that we should retain the concept of crime, that we should maintain a criminal

law which defines and condemns a category of ‘public’ wrongs, is not yet to say that we should

maintain a penal system which punishes those who commit such wrongs; as it has been noted,

while a system of criminal law might require something like a system of criminal trials which

will authoritatively identify and condemn criminal wrongdoers, it does not of its nature require

the imposition of further sanctions on such wrongdoers.

Sociological approach

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In sociological terms, punishment raises questions such as why particular punishments were used

and why they are no longer used; why a punishment like capital punishment has been abandoned

to a great extent in the West; and why imprisonment has become the major form of punishment

for criminal activity.

Sociological perspectives on punishment include the thinking of Durkheim, Weber, the Marxist

tradition, and post-Marxist sociologies of punishment, particularly that propounded by Foucault.

Sociologists expand the notion of punishment to “penality,” which they explore in various

societies at various times.

Hudson defines penality as:- “The complex of ideas (about proper punishment, about effective

punishment), institutions (laws, policies and practices, agencies and buildings) and relationships

(who has the power to say who is punished, whose ideas count, what is the relationship of those

who punish and are punished to the rest of society) involved in the punishment of offenders.”

In social terms, research has concluded that punishments depend less on philosophical arguments

and more on the currents and movements in social thinking and in climates of tolerance and

intolerance. A focus on history and changes in social conditions has illuminated the relationship

between punishment and society, which in turn has broadened the investigation of the notion of

punishment into questions concerned with how order and authority are maintained in society.

Garland summarizes social theory about punishment as: “that body of thought which explores

the relations between punishment and society, its purpose being to understand punishment as a

social phenomenon and thus trace its role in social life.

He has argued that punishment is the product of social structure and cultural values. Thus, whom

we choose to punish, how we punish, and when we punish are determined by the role we give to

punishment in society. If we construe criminal punishment as a wrong for a wrong, then we must

conclude that society is, in a sense, wronging the offender. We must therefore ask, “can the

infliction of pain or a wrong upon an offender be justified ethically?”

To answer this question, one must first look at the purpose of criminal punishment and question

the various rationales put forward for punishment, such as deterrence, rehabilitation, retribution.

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PHILOSOPHICAL APPROACHIn the philosophical debate about punishment, two main types of theories of punishment

dominate: -

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1)Utilitarian theory,8

2)Retributive theory.

These philosophical theories have in turn generated further theoretical discussions about

punishment concerned with deterrence, retribution, incapacitation, rehabilitation, and more

recently, restorative justice.

Theories that set the goal of punishment as the prevention of future crime (deterrence) are

usually referred to as utilitarian because they are derived from utilitarian philosophy.

Pastoriented theories (theories that focus on the past actions of the offender) are referred to as

retributivist because they seek retribution from offenders for their crimes. The retributivist

conception of punishment includes the notion that the purpose of punishment is to allocate moral

blame to the offender for the crime and that his or her future conducts is not a proper concern for

deciding punishment Theories of deterrence, retribution, rehabilitation.

Each of these theories tries to establish a basis for punishment as a response to the question “why

punish?

Theories of PunishmentWith change in the social structure the society has witnessed various punishment theories and the

radical changes that they have undergone from the traditional to the modern level and the crucial

problems relating to them. Kenny wrote: "it cannot be said that the theories of criminal

8 Utilitarianism is a theory in normative ethics holding that the proper course of action is the one that maximizes overall happiness. It is now generally taken to be a form of consequentialism, although when Anscombe first introduced that term it was to distinguish between "old-fashioned Utilitarianism" and consequentialism..According to utilitarianism the moral worth of an action is determined only by its resulting outcome although there is debate over how much consideration should be given to actual consequences, foreseen consequences and intended consequences.

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punishment current amongst our judges and legislators have assumed...."either a coherent or

even a stable form. B.Malinowski believes all the legally effective institutions....are....means of

cutting short an illegal or intolerable state of affairs, of restoring the equilibrium in the social life

and of giving the vent to he feelings of oppression and injustice felt by the individuals.

The general view that the researcher finds is that the researcher gathers is that the theories of

punishment being so vague are difficult to discuss as such. In the words of Sir John Salmond,

“The ends of criminal justice are four in number, and in respect to the purposes served by the

them punishment can be divided as:-

1) Deterrent

2) Retributive

3) Preventive 

4) Reformative

Of these aspects the first is the essential and the all-important one, the others being merely

accessory. Punishment before all things is 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.

Deterrent Theory:- One of the primitive methods of punishments believes in the fact that if

severe punishments were inflicted on the offender would deter him from repeating that

crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a feeling of

enjoyment in the act or in a psychological term “satisfies their animal instinct”. Deterrence

theory is generally grounded in the assumption that the potential criminal, like other citizens, is a

rational actor.9 To neutralize this inclination of the mind, punishment inflicts equal quantum of

suffering on the offender so that it is no longer attractive for him to carry out such committal of

crimes. Pleasure and pain are two physical feelings or sensation that nature has provided to

mankind, to enable him to do certain things or to desist from certain things, or to undo wrong

things previously done by him. It is like providing both a powerful engine and an equally

powerful brake in the automobile. Impelled by taste and good appetite, which are feelings of

9 D. A. Anderson (in press) for evidence that this rationality begins and ends with those who write the laws. Anderson revealed that those individuals who run afoul of the laws had very little veridical knowledge of the likelihood that their crime would be detected, the likely punishment for their crime if they were caught, or the penal process in general. In other words, the assumption of rationality in the criminal population may be unwarranted.

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pleasure a man over-eats. Gluttony and surfeit make him obese and he starts suffering disease.

This causes pain. He consults a doctor and thereafter starts dieting . Thus the person before

eating in the same way would think twice and may not at all take that food. In social life

punishment introduces the element of 'pain' to correct the excess action of a person carried out by

the impulse (pleasure) of his mind. We all like very much to seize opportunities, but abhor when

we face threats. But in reality pain, threat or challenges actually strengthens and purifies a man

and so an organization

The basic idea of deterrence is to deter both offenders and others from committing a similar

offence. But also in Bentham's theory was the idea that punishment would also provide an

opportunity for reform.

In earlier days a criminal act was considered to be due to the influence of some evil spirit on the

offender for which he was unwillingly was made to do that wrong. Thus to correct that offender

the society retorted to severe deterrent policies and forms of the government as this wrongful act

was take as an challenge to the God and the religion.

But in spite of all these efforts there are some lacunae in this theory. This theory is unable to

deter the activity of the hardcore criminals as the pain inflicted or even the penalties are

ineffective. The most mockery of this theory can be seen when the criminals return to the prisons

soon after their release, that is precisely because as this theory is based on certain restrictions,

these criminals are not effected at all by these restrictions rather they tend to enjoy these

restrictions more than they enjoy their freedom.

Retributive Theory:-

“An eye for an eye would turn the whole world blind”- Mahatma Gandhi.

Retributive punishment, in the only sense in which it is admissible in any rational system of

administering justice, is that which serves for the satisfaction of that emotion of retributive

indignation which in all healthy communities is strived up by injustice.

This was formerly based on theory of revenge.-“tooth for tooth” and “eye for eye”.

Today, on the other hand, this theory is based on the idea that punishment is the necessary alkali

to neutralize the evil effects of crime. The idea behind the retributive punishment is that of the

restoration of the moral character, the appraisement of the disturbed conscience of society itself

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and the maintenance of the sovereign power of the state which becomes aggrieved when a crime

is committed and inflicts punishment to set matters of right. Though the system of private

revenge has been suppressed, the instincts and emotion that lay at the root of these feelings are

yet present in human nature. Therefore, according to this moral satisfaction that the society

obtains from punishment cannot be ignored.

On the other hand, if the criminal is treated very leniently or even in the midst of luxury, as the

reformative theory would have it, the spirit of vengeance would not be satisfied and it might find

its way through private vengeance. According to this theory eye for eye and tooth for tooth is

deemed to be a complete and really sufficient rule of natural justice.

In the last, we can easily say that the only logical inference from the reformative theory, if taken

itself, is that they should be abandoned in despairs as no fit subject for penal discipline. The

deterrent and disabling theories on the other hand, regard such offenders as being pre-eminently

those with whom the criminal law is called upon to deal.

The application of purely reformative theory, therefore would lead to astonishing and

inadmissible results. The perfect idea of criminal justice is based on neither reformative nor the

deterrent principle exclusively, but the result of comprise between them.

In this it is the deterrent principal which possesses predominant influence. It will not be out of

place to mention here that Gandhi ji “hate the sin and not the sinner”, is merely a philosophical

assertion and cannot furnish a practical guide in the administration of justice

Preventive Theory:- Unlike the former theories, this theory aims to prevent the crime rather

than avenging it. Looking at punishments from a more humane perspective it rests on the fact

that the need of a punishment for a crime arises out of mere social needs i.e. while sending the

criminals to the prisons the society is in turn trying to prevent the offender from doing any other

crime and thus protecting the society from any anti-social elements.

Thus one an easily say that preventive theory though aiming at preventing the crime to happen in

the future but it still has some aspects which are questioned by the penologists as it contains in its

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techniques which are quite harsh in nature. The major problem with these type of theories is that

they make the criminal more violent rather than changing him to a better individual. The last

theory of punishment being the most humane of all looks into this aspect.

Reformative Theory:- But that is the beginning of a new story-the story of the gradual

Renewal of a man, the story of his gradual regeneration, of his Passing from one world into

another, of his initiation into a new Unknown life.

The most recent and the most humane of all theories is 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 crimes. Though it may be true that there has been a greater onset of crimes

today than it was earlier, but it may also be argued that many of the criminals are also getting

reformed and leading a law-abiding life all-together. Reformative techniques are much close to

the deterrent techniques.

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.

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Is Retribution in Fact Revenge?Retribution is something justly deserved; recompense or something given or demanded in

repayment, especially punishment. Retributive theories of punishment argue that punishment

should be imposed for past crimes and that it should be appropriate to the nature of the crime

committed; that is, the severity of the punishment should be commensurate with the seriousness

of the crime.

Sometimes, retributive punishment is confused with notions of revenge. “Revenge is a harmful

action against a person or group in response to a grievance, be it real or perceived. It is also

called payback, retribution, retaliation or vengeance; it may be characterized as a form of justice,

an altruistic action which enforces societal or moral justice aside from the legal system, also

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Referred to as a kind of wild justice”.10. Revenge which is a form of sin that blinds a man to

cause loss of the reasonable foresight and coaxes him do an act that he might not have committed

in regular life.

Retribution is generally equated to the “Eye for an eye” concept which means that a person who

has injured another person is penalized to a similar degree, 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.11

Critics of ‘retributionist’ theories of punishment argue that retribution is basically nothing more

than vengeance. However, Nozick argues that there is a clear distinction between the two

because “retribution is done for a wrong, while revenge may be done for an injury or harm or

slight and need not be a wrong” 12 He also points out that whereas retribution sets a limit for the

amount of punishment according to the seriousness of the wrong, no limit need be set for

revenge.

In this sense, therefore, revenge is personal whereas the person dispensing retributive

punishment may well have no personal tie to the victim. As Nozick points out, “revenge involves

a particular emotional tone, pleasure in the suffering of another”

A further distinction between the two is that retribution in the form of punishment is inflicted

only on the offender, but revenge may be carried out on an innocent person, perhaps a relative of

the perpetrator.

10 Francis Bacon, source Wikipedia11 talion means a retaliation authorized by law, in which the punishment corresponds in kind and degree to the injury, from the Latin talio12 (1981: 366).

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Punishment as Communication

The central meaning and purpose of punishment, on such accounts, is to communicate to

offenders the censure or condemnation that they deserve for their crimes. Once we recognise, as

we should, that punishment can serve this communicative purpose, we can see how such

accounts begin to answer the two questions that retributivists face.

First, there is an obviously intelligible justificatory relationship between wrongdoing and censure

—as a response which is intended to bring pain (the pain of condemnation by one's fellows) to an

offender for his offence: whatever puzzles there might be about other attempts to explain the idea

of penal desert, the idea that wrongdoers deserve to suffer censure is surely unpuzzling.

Second, it is appropriate for the state to ensure that such censure is formally administered

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through the criminal justice system: for crimes are public wrongs, breaches of the political

community's authoritative code; as such, they merit public censure by the community.

Furthermore, whilst internal to censure is the intention, or hope, that the person censured will

accept the censure as justified and will thus be motivated to avoid crime in future, this kind of

account can avoid the charge (as brought against consequentialist theories) that it seeks to coerce

or manipulate offenders into obeying the law. For censure addresses, and respects, the person

censured as a rational and responsible agent: it constitutes an appropriate, deserved response to

the wrong that she did, and seeks to bring her to modify her future conduct only by reminding

her of the good moral reasons that she has for refraining from crime; it is an appropriate way for

citizens to treat and respond to each other.

However, an obvious and crucial question faces any such justification of punishment as a

communicative enterprise. Censure can be communicated through a formal conviction in a

criminal court; or it could be communicated by some further formal denunciation issued by a

judge or some other representative of the legal community, or by a system of purely symbolic

punishments which were painful only in virtue of their censorial meaning. It can, of course, also

be communicated by ‘hard treatment’ punishments of the kinds imposed by our courts—by

imprisonment, by compulsory community service, by fines and the like, which are painful or

burdensome independently of their censorial meaning but why should we choose such methods

of communication, rather than methods that do not involve hard treatment?

But why is it so important to make the communication effective—and is there not a serious

danger that the hard treatment will conceal, rather than highlight, the moral censure it should

communicate?

One kind of answer to this question brings consequentialism and deterrence back into the picture:

we should communicate censure through penal hard treatment because this will give those who

are insufficiently impressed by the moral appeal of censure prudential reason to refrain from

crime; because, that is, the prospect of such punishment might deter those who are not

susceptible to moral persuasion.

This kind of account differs from the side-constrained consequentialist accounts discussed

earlier, since the (retributivist) imposition of deserved censure is now part of the positive

justifying aim of punishment; and it can claim, in response to the Hegelian objection to

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deterrence, that it does not address potential offenders merely ‘like dogs’, since the law's initial

appeal to the citizen is in the appropriate moral terms: the prudential, coercive reasons

constituted by penal hard treatment as deterrence are relevant only to those who are deaf, or at

least insufficiently attentive, to the law's moral appeal. It is still true, however, that on this

account the law, in speaking to those who are not persuaded by its moral appeal, is to abandon

the attempt at moral communication in favour of the brute language of threats; and, for those

who take seriously the Kantian demand that the state and its law should address its citizens as

responsible moral agents, this slide into deterrence is still morally problematic.

A different answer to the ‘Why hard treatment?’ question explains penal hard treatment as an

essential aspect of the enterprise of moral communication itself. Punishment, on this view,

should aim not merely to communicate censure to the offender, but to persuade the offender to

recognise and repent the wrong he has done, and so to recognise the need to reform himself and

his future conduct, and to make apologetic reparation to those whom he wronged. His

punishment then constitutes a kind of secular penance that he is required to undergo for his

crime: its hard treatment aspects, the burden it imposes on him, should serve both to assist the

process of repentance and reform, by focusing his attention on his crime and its implications, and

as a way of making the apologetic reparation that he owes. This kind of account has some

relation to accounts that portray punishment as a kind of moral education. It faces serious

objections in particular that it cannot show penal hard treatment to be a necessary aspect of a

communicative enterprise which is still to respect offenders as responsible and rational agents

who must be left free to remain unpersuaded; that apologetic reparation must be voluntary if it is

to be of any real value; and that a liberal state should not take this kind of intrusive interest in its

citizens' moral characters. We cannot discuss these objections here, but should turn to a currently

prominent strand in abolitionist thought, with which this communicative account of punishment

can be usefully compared.

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Locus of Deterrence: A ReportThe Institute of Criminology at Cambridge University was commissioned by the Home Office to

undertake a review of the literature on criminal deterrence, with special reference to the question

whether severer sentences constitute a more effective deterrent against crime. The study follows

officially-sponsored reviews undertaken around 20 years ago in this country and in the United

States. The present review focuses on recent deterrence research.

The specific issues the researchers were asked to examine were:

1) The evidence from the literature that criminal justice interventions have an effect on potential

offenders’ willingness to commit crimes;

2) The extent to which any effects can be separately quantified in terms of the risk of being

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caught, convicted or given a more severe sentence;

3) Evidence of offenders responding to sentencing policy or practice;

4) Evidence that processes outside the criminal justice system are effective in dissuading people

from offending;

5) The way in which offenders make decisions and the extent to which deterrence plays a part.

The review finds convincing evidence from the literature that, in some circumstances, deterrence

works. Ordinary people can be deterred by both formal and informal sanctions. The criminal

justice system as a whole also exercises a deterrent effect -- crime would be more prevalent if

offenders could offend with impunity.

The review therefore concentrated on the issue of ‘marginal deterrence’, i.e. the effects of

making changes to:

1) certainty of punishment (e.g., the likelihood of being apprehended and convicted); and

2) severity of punishment (e.g., the likelihood of a convicted offender's being imprisoned, and

the length of his or her prison sentence).

It is the latter issue, of severity, which is the report's primary concern.

The report concludes that the studies reviewed do not provide a basis for inferring that increasing

the severity of sentences generally is capable of enhancing deterrent effects. The study's main

findings are the following:-

Studying Marginal Deterrence. There are technical difficulties involved in demonstrating

convincing marginal deterrent effects, and the report therefore contains an analysis of the

elements needed for satisfactory research designs.

Addressed issues include: (1) the use of variables that adequately distinguish severity from

certainty of punishment, (2) adequate controls for other possible influences on crime rates; and

(3) satisfactory methods of examining whether and to what extent changes in criminal-justice

policies actually alter potential offenders' beliefs concerning the risks of punishment. It is

suggested how a well designed study, that properly addresses issues such as these, can provide

ways of validly inferring whether or not a deterrent effect is at work in a given situation.

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Correlations: Certainty Effects. The survey examines recent studies concerning statistical

relationships between changed certainty or severity of punishment and crime rates. Most notable

of these studies are Farrington, Langan and Wikstrom (1994), and Langan and Farrington (1998),

which examine crime and punishment trends in England and the U.S. during periods covering

1981-96, and which calculate the statistical relationships between these trends. This research,

confirming earlier deterrence studies, finds substantial negative correlations between the

likelihood of conviction (a "certainty" measure) and crime rates. (A "negative correlation" means

here, in statisticians' language, that increased likelihood of conviction is statistically associated

with declining crime rates, or vice-versa.) While further research would be needed to confirm

that these associations are attributable to deterrence, such a pattern is at least consistent with an

hypothesis of marginal deterrence with respect to the certainty of punishment.

Correlations: Severity Effects. In the Farrington studies just mentioned, the statistical

associations between severity of punishment and crime rates were much weaker. Such negative

correlations between sentence severity and crime rates as were found to exist generally were not

sufficient to achieve statistical significance. These patterns, which are consistent with those

found in earlier studies, provide little support for an hypothesis of marginal deterrence with

respect to severity of punishment. One of these studies, Farrington, Langan and Wikstrom

(1994), provides calculations that compare the English and America (as well as Swedish) trends.

The absence of a finding in that study of strong correlations for severity is notable -- because

U.S. penalty levels have been substantially higher than English levels during the periods studied.

Perceptual and Contextual Deterrence. The survey examines the considerable body of recent

literature on "perceptual" deterrence. This literature, based largely on surveys, examines the link

between potential offenders' beliefs concerning likelihood or severity of punishment, and their

reported decisions or expectations of offending. It suggests that, for at least some classes of

potential offenders, their perceptions of the risks of being apprehended and punished (when they

are aware of such risks) affect their reported choices of whether to offend. These studies thus

help confirm that known penal threats can have a deterrent effect. However, the studies with the

least methodological problems (those based on scenarios of offending) are mostly concerned

with informal sanctions; and, to the extent they address criminal-justice responses at all, deal

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with "certainty" variables such as perceived likelihood of prosecution. They thus do not shed

much light on questions of severity effects.

Social Ties. The recent perceptual studies, and a few available studies of actual offending

behaviour, provide additional confirmation for the hypothesis that social ties, or the lack of them,

affect the deterrent effects of the criminal-justice policies -- with persons having strong social

ties (i.e., strong links to families, local communities, etc.) being the more readily deterred by

prospects of being apprehended. There is also evidence from studies of offender decisionmaking

that persistent offenders with weak social ties, such as persistent burglars, often act impulsively,

and in circumstances that they themselves define as a situation of pressing need (e.g. a need for

money, or a need to defend a status or reputation). Such impulsivity may reduce these offenders'

amenability to being deterred through increased penalties.

Knowledge of Punishment Threats. Deterrence concerns desistance from crime through fear of

the legal consequences. It is consequently subjective, so that changes in criminal justice policies

can have no deterrent effect unless they alter potential offenders' beliefs about sanction risks.

Thus even were crime rates statistically associated with changes in certainty or severity of

punishment, this would not establish a deterrent effect unless there also were evidence that

considerable numbers of potential offenders were aware of those changes. The most serious

deficiency in current deterrence research, the report finds, is the absence of systematic inquiry

into the extent of that awareness. A recent Home Office study (Hough and Roberts 1998) shows

that members of the general public tend to be in error about sanction risks, in the direction of

underestimating greatly severity of the sanctions actually imposed. To the extent these

misconceptions are shared by those tempted to offend, changes in sentencing policy may fail to

achieve deterrent objectives – because potential offenders cannot be deterred by sentencing

changes of which they are unaware. It is true that when sentencing changes are introduced,

newly-sentenced offenders may experience their effects; and that information may be

communicated through their social networks. But it is not known how widely, or how quickly,

such information spreads. Since general deterrence is directed to potential offenders, and not

necessarily only to convicted offenders and their immediate peers, this issue of dissemination is a

critical, and unexplored, area of study. The absence of such data on knowledge of punishment

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risks makes it difficult to draw valid inferences concerning the marginal deterrent effects of

changes in sanction levels.

Bibliography Legallyindia.com

plato.stanford.edu

Biblegateway.com

Harvardlaw.edu

Quora.com

members.multimania.co.uk/lawnet/

www.sagepub.com

Beyleveld, D. (1980). A Bibliography on General Deterrence

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Criminal Deterrence & Sentence Severity: An Analysis of recent research by Andrew von

Hirsch, Anthony E. Bottoms, Elizabeth Burney and P-O. Wikstrom

N.V. Paranjape- Criminology

Sutherland and Cressey Googlebooks

*****

ConclusionSociety is a complex structure composed of several complex yet inseverable units. Crime will

always remain as a part of the social cement between these units. There will always come a time

when a certain “act” will lose its social acceptability or rather social status and hence its

orientation will change from a practice or legal act to an offence or vice versa. Since the life of

law has never been logic but experience. Just like the “Sati” practice, which was once a tradition

whereby a widow has to jump in the funeral pyre of her deceased husband or lead a life of social

outcast, lost its designation and became a taboo or an offence. Recent issue is of penal provision

pertaining to “unnatural offences” and demand to bestow legal status to it is been echoed all

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over. Till the provision is not gaining a legally valid status it will continue to be an offence and

the person involved in it will be punished. Here the interventionists raise Why Punish a person?

Punishment is the authoritative imposition of something negative or unpleasant on a person or

animal in response to behaviour deemed wrong by an individual or group. The authority may be

either a group or a single person, and punishment may be carried out formally under a system of

law or informally in other kinds of social settings such as within a family. Negative

consequences that are not authorized or that are administered without a breach of rules are not

considered to be punishment as defined here. The study and practice of the punishment of

crimes, particularly as it applies to imprisonment, is called penology, or, often in modern texts,

corrections; in this context, the punishment process is euphemistically called "correctional

process".

Why we punish a wrongdoer is a simple concept for a layman and a child i.e. just to teach a

lesson to the wrongdoer but when it comes to normative understanding and theoretical

approaches it is a complex question that involves several theories and explanation of very minute

ideas but end up making some bit consensus with the layman ideology.

People are born capable of doing mischievieous things. It’s a short moment that can transform a

man’s most innocent feeling into a catastrophic disaster. So, adding questioning Sigmund Freud

theory, Is the concept of punishment meant to enunciate those morals or rather superego?

It is immaterial whether a person commit an offence without premeditation or not, willingly or

unwillingly or so. If a statutory provision points it as an offence then he will be charged and

thereby punished for it.

Further, if a person is not committing someone’s murder it can’t be wholly because to kill is an

offence but may be his morals or his conscience is not advocating him to act so. So the criminal

law system and the deterrence theory can’t be fully credited for a person’s normative or

retributive behavior.

As Justice Aiyar stated in Mohd. Ghyasuddin Case “Law cannot fully change a person.”

So it can be concluded easily that punishments are necessary evil. Evil because they are inflicted

as pain and suffering on the other person and necessary because they are somewhere an ointment

to the social hue and cry caused by an offence. They cannot be called as deterrence because

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people deter from offences not because of the punishment that will be inflicted upon them for the

same.

So punishments are “Communicators” in real sense. And we punish for this communication only.

As Manu said:- “Punishments governs all mankind; punishment alones preserve them;

punishment wakes while guards are asleep; the wise consider the punishment (danda) as the

perfection of justice.”

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