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Overview
Crime is a subject of intense feelings and clashing belief systems. Notwithstanding, it has been commonly clarified as an impression of individual decision and equilibrating behavioural influences. Two significant topics of discussion in this article is that what are the different types of theories of punishment and how it has been implemented or rather what are different trends in different jurisdictions like India, US and UK. Crimes are mostly influenced on the edge by both positive and negative motivators; there are not severe constraints to the adequacy of crippling and rehabilitation; and ideal implementation procedures of law[1]. This article shall try to decipher the aspects of different types of punishment that is encouraged in the criminal justice system of different jurisdictions.
Introduction
Every society has its own particular manner of social control for which it outlines certain laws and furthermore makes reference to the authorizations with them. These authorizations are what is called as Punishments. The main thing to specify corresponding to the meaning of punishments is the ineffectualness of definitional hindrances planned to show that one or other of the proposed supports of punishments either intelligently include or legitimately avoided by definition. Many a times, punishments have been named as a method of social security for the citizens of the state. The affinity of punishments with numerous different measures including hardship ethically perceived rights is by and large clear.
While the types of punishment vary between legal systems, it is clear that they all derive from some act or omission. Murder, robbery, littering, stealing, trespass, and other moral and legal wrongs are also included in this group. As earl said, crime differs greatly depending on location. As a result, the types of punishment will differ. In one society, a particular activity might be considered a crime, while in another, it is not. In India, for example, euthanasia is illegal, but it is legal in many European countries, including Holland. However, such crimes, such as murder, are almost universally remembered.
Types of Punishments
With the transformation of society’s social system, numerous punishment ideas have arisen, as well as the progressive changes that they have undergone from conventional to new levels, as well as the important concerns that they have posed.
Retributive Theory
Retribution is the most antiquated defence for discipline. This theory demands that an individual merits discipline as he has carried out an illegitimate thing. Additionally, this theory means that no individual will be captured except if that individual has overstepped the law.The oldest reason for punishment is retribution. This principle asserts that a person who has committed a wrongdoing is deserving of punishment.
This principle also implies that no one can be punished unless they have violated the law. The retributive theory emphasises the offence as the basis for administering retribution. The utilitarian theory looks forward and bases punishment on societal gains, while the retributive theory looks backward and bases punishment on the transgression.
People have unrestrained choice and are equipped for settling on sensible decisions, according to retribution theory. Insane or otherwise inept offenders should not be disciplined. An individual who deliberately chooses to disturb society’s equilibrium, on the other hand, should be punished according to the law of t he country. Retribution theory can be justified on a variety of moral grounds. Punishment is justified as a means of retribution by many retributivists: wrongdoers should be made to suffer because they have caused others to suffer. Th Holy Bible expresses this ancient concept succinctly: “If a man creates a disfigurement in his neighbour… it shall be done to him, fracture for fractur….”
Some theorists argue that retaliation against a wrongdoer is justified in order to defend both society and the offender’s legitimate rights granted under the law of country. Punishment demonstrates society’s appreciation for the wrongdoer’s free will. It also demonstrates empathy for the wrongdoer by allowing the perpetrator to pay their debt to society and then return to society, shame and stigma-free.
Deterrent Theory
Deterrence proponents claim that people decide whether to follow or break the law after weighing the benefits and risks of their decisions. Overall, however, proving the efficacy of deterrence is difficult because only those criminals that are not deterred come to the attention of law enforcement. As a result, we can never understand why others should not annoy us.
The theory of deterrence that originated from Hobbes, Beccaria, and Bentham’s work is based on three distinct elements: magnitude, certainty, and rapidity. It is believed that the harsher the penalty, the more likely a rationally calculating human being would refrain from criminal actions[2]. As a consequence, in order to deter crime, criminal legislation must prioritise fines in order to motivate people to follow the law.
Punishment that is too brutal is uncalled for, and punishment that is deficiently cruel won’t keep guilty parties from carrying out wrongdoings. Punishment fundamentally assures that punishment is granted if a criminal demonstration is performed. Traditional masterminds, for example, of this theory claim that if individuals are cognizant that their awful lead will be punishment, they won’t do it
Furthermore, their punishment must be swift in order to deter crime. The closer the sentence is enforced to the time of the offence, the more likely it is that criminals may know that crime does not pay. In short, deterrence theories assume that if punishment is serious, certain, and swift, a reasonable individual will weigh the benefits and losses before breaking the law, and will be deterred if the loss is greater than the benefit.
Classical philosophers assumed that certainty, rather than the magnitude of punishment, was more effective in deterring crime. They opposed torture as a means of obtaining confessions, as well as the death penalty as a realistic choice for punishing killers and other violent offenders. The state’s just powers do not extend to capital punishment. Since deterrence doctrine foundations are often used in criminal justice system, criminological analysis continues to question the deterrence effect of punishment. The deterrent principle is now used in programmes like boot camps for juvenile offenders and “scared straight” programmes.
Preventive Theory
The preventive theory of punishment is like the v. Due to its acculturating angle, utilitarians, for example, Bentham, Mill, and Austin of England upheld the preventive theory of punishment. As indicated by the defenders of the preventive hypothesis, the point of punishment is to dissuade offenses, which can be refined when the culprit is incapacitated. The disablement of the criminal might be restricted or limitless
The preventive theory of punishment, according to preventive philosophy, is an efficient deterrence as well as a useful preventive measure. The efficacy of the preventive theory is determined by the element of promptness; if the inquiry or examination takes too long, the penalty or sanction will be made ineffective.
This proposes that the preventive hypothesis of punishment is identified with the deterrent theory and the recovery theory of punishment of ; truly, precise deterrence can be connected to the preventive theory. Specific deterrence is deterrence for the specific offenders who have committed the crime and prevents criminals from committing future crimes; the preventive principle also deters criminals from committing future crimes by disabling the criminal, either permanently or temporarily. Besides, the preventive theory tries to change offenders through reconstruction and re-instruction, which is what is the issue here.
Incapacitation Theory
The incapacitation theory of punishment advocates that criminals should be discouraged from committing further offences by their temporary or permanent expulsion from society or by any other means that limits their physical capacity to reoffend in any way. The most popular means of incapacitating prisoners is incarceration; however, other, more extreme methods such as capital punishment are also used. The ultimate goal of incapacitation theory is to keep the community’s most violent or prolific criminals from reoffending.
Furthermore, Incapacitation theory contends that higher incarceration rates result in lower crime rates because the prisoner is unable to commit new offences while incarcerated. Moreover, this theory is based on the idea that there are a limited number of criminals who can be incarcerated and removed from the rest of society. The success of incapacitation theory is still an open question. Although supporters of the theory point out that lower crime rates normally accompany higher incarceration rates, the explanations for these fluctuations remain unclear.
Compensatory Theory
The theory of Compensation in Criminal is majorly about compensating the victim of the losses that is incurred. This type of punishment is relevant in the Indian Jurisprudence. The victim not only suffers physical harm but also mental hardships which are unliquidated damages. According to the theory of Compensation, the purpose of punishment should not only be to discourage future offences, but also to compensate the victim[3].
Reformative Theory
The reformative theory, which holds that positive thinking is at the root of crime, gave birth to the reformative theory. As a consequence, according to this theory, the target of punishment must be the offender’s reformation. As a result, this is a rehabilitative mechanism rather than a virtual penalty. As a result, this mechanism aids in the transformation of a criminal into a decent person to the greatest extent possible. Furthermore, it makes the citizen a meaningful citizen and an upright straight man.
Punishment, according to this theory, can be used as a method for social education. It focuses on rehabilitating offenders by individualization approaches. It states that crimes are committed as a result of the effect of motivation on character. As a result, either a change in intent or a change in character may be used to verify them. Crime, according to this theory, is the product of an illness, and the criminal is a patient who needs to be treated properly.
According to this theory, the legitimate object of punishment is to reform the offender’s character so that he can desire to do what is right rather than what is wrong. According to the eminent Jurist Salmond, “a Reformative element in punishment is important and should not be overlooked but at the same time it should not be allowed to assume undue importance. He says that crime cannot be treated as a disease.”
Trends in India
The Union of India is a federal republic made up of many states. The states have their own rights and are governed by the Indian Constitution. The state subjects are the police and the jail. The police, judiciary, and correctional institutions, on the other hand, adhere to federal laws. In India, the adversarial method of common law is used to administer criminal justice, i.e. the common law inherited from the British colonial rulers.
Pretrial diversion services, probation, and parole are examples of how our justice system adheres to utilitarian values. These programmes aim to keep punishment to a minimum in order to protect society. The utilitarian philosophy is often expressed in the allocation of various sentences for different offences, as well as the principle that a convicted criminal’s penalty should be equal to the damage caused by the crime[4]. Murder, for example, is punishable by incarceration or even death. A simple assault and battery that does not result in serious injury is typically punished with a brief prison sentence or probation and a fine.
Following a 1973 amendment to the Code of Criminal Procedure, the death penalty became an exception to the law. Nonetheless, in its 35th report in 1967, the Law Commission assessed the need for the death penalty in India and recommended that it be retained. Even after ratifying the International Covenant on Civil and Political Rights[5], which calls for a phased transition to death penalty abolition, India seems to be moving in a different direction.
The theory of the death penalty being used only in the most serious cases, as set out in the seminal decision Bachan Singh v. State of Punjab[6], has been interpreted differently in various cases. In India, the lack of a consistent sentencing framework allows the judiciary to exercise unbridled discretion, resulting in the imposition of excessive punishment.
Imprisonment is another form of punishment that is vvery widely prevalent in India wherein the accused in confident in a locked-up room or penitentiary. Imprisonment was almost unknown in the prehistoric era, and it was only in the 19th and 20th centuries that it became a large part of the legal system. The framers of the Indian Penal Code[7] even planned for two forms of punishments. The imposition of a fine or penalty has been standard practise in civilisation since the beginning of the tribal system.
The Supreme Court ruled in the case of Ashok Kumar vs. State[8] that “Punishment of fine brings home a sense of responsibility in a surer fashion than even short terms of imprisonment in some cases”. Therefore, the Indian law majorly deals with thee fines as a mode of punishing the offender. The Indian Penal Code also provides for property forfeiture, and it was also common in ancient India. However, Sections 61 and 62 of the Indian Penal Code (Amendment) Act, 1921, repealed the punishments for property forfeiture. However, there are several sections in the IPC that provide for property forfeiture as a penalty such as section 126, 127 and 169[9].
Trends in USA
The enactment regulating punishment in the United States shifts by jurisdiction. Since the United States Constitution is the preeminent law of the country, all sentences in the United States should hold fast to the Constitution’s standards, which sets up fundamental orders while leaving the main part of policymaking to the states. Notwithstanding the way that government criminal law keeps on extending, by far most of criminal discipline happens in state and nearby courts. With the exception of capital punishment cases (which are astoundingly uncommon), juries for the most part have little inclusion in condemning, which is commonly left to the circumspection of the managing judge.
Sentences are regularly articulated by the appointed authority in a different hearing, after the jury (or other locater of certainty) has given discoveries of reality and a liable decision, and at times after the probation division has completed a pre-sentence examination. The construction and ward of courts inside a U.S. state are normally represented by state law, as are sentences and condemning rules and systems. There is gigantic considerable and procedural distinction between the criminal laws of the fifty states and the different government domains and territories.
The United States Sentencing Commission[10] is a self-sufficient office in the legitimate division of government. Its central expectations are to set up condemning approaches and practices for the public authority courts, including rules suggesting the fitting construction and reality of punishments for miscreants prosecuted for lawful offenses and to admonish and help Congress and the official branch in the improvement of incredible and productive wrongdoing strategy; and to assemble, inspect, research, and suitable a sweeping display of information on crime and censuring issues, filling in as an information resource for Congress, the official branch, the courts, criminal value experts, the insightful neighborhood, general society.
Trends in UK
In UK, a bench of magistrates or district judge in a Magistrate’s Court or a judge in a Crown Court passes judgement on a person found guilty of a criminal offence. The court will consider a number of factors in determining the sentence, including the type of offence and its severity, the timing of any guilty plea, the defendant’s character and antecedents, and the defendant’s character and antecedents including his/her criminal record and the defendant’s personal circumstances such as their financial circumstances in the case of a fine being imposed.
The types of sentences that may be imposed for a specific offence are specified by statute in England and Wales. Discharges, fines, community sentences, and custodial (or prison) sentences are the four major types of sentences. A prisoner is released conditionally or unconditionally if a court convicts him but agrees not to execute him.
Fines are the most well-known form of Punishment. For offenses viewed as “serious enough”, a scope of community sentences is provided by the court. community sentences place a ‘prerequisite’ on the wrongdoer – things they should do, or not do, locally. Necessities can include: accomplishing neglected work, getting treatment for a drug addiction or keeping a litigant from going to a particular spot or zone.
For those offenses considered so genuine that a non-custodial sentence can’t be pushed, a prison sentence may be constrained, either expeditious or suspended. The most limit prison sentence in the adjudicators’ court is a half year (which may be constrained progressively up to a year for two offense however offenses). There is moreover an extent of assistant sentences open to the courts, for instance, compensation orders, costs, controlling solicitations and rejection orders, dependent upon the sort of offense.
The mandatory punishment for the most violent crimes, such as murder, is life in jail. Certain gun crimes, “three strikes and you’re out” burglaries, using someone to mind a weapon, and those committed by violent criminals all have minimum penalties. For prisoners aged sixteen to seventeen, there are various sentencing guidelines, as well as some changed provisions for those aged ten to seventeen, and some modified provisions for those in the 18-20 age range.
The fundamental resolution on sentencing is the Criminal Justice Act[11], which made a system for sentencing decisions in the courts. Albeit the Act sets out various variables that the court should consider when passing sentence, the load to be appended to each factor for a situation is a matter for the sentencer. By determining greatest sentences for specific offenses, Parliament demonstrates its perspective on the seriousness of the offence.
The Sentencing Council[12] helps with refining this association by provide guidance, including censuring rules which suggests a denouncing level for every circumstance. The sentencer is expected to consider the standards and, in case they decide to drive a substitute kind of sentence, to give their clarifications behind doing as such.
References:
[1] Chakrabarti, N. K., & Dube, D. (2017). R. Deb’s Principles of Criminology, Criminal Law and Investigation (4th ed., Vol. 1). Kolkata: S.C. Sarkar
[2] James Fitzjames Stephen. History of the Criminal Law of England (1883).
[3] Chockalingam, K. (1993). Restitution to victims of crime in India–Recent developments. Indian Journal of Criminology, 21(2), 72–81.
[4] Dhananjay Kashyap, Death Penalty in India, 2013 Asian J. LEGAL Stud. 70 (2013).
[5] International Covenant on Civil and Political Rights, 1976.
[6] (1980) 2 SCC 684
[7] Indian Penal Code, 1908
[8] (1980) 2 SCC 20
[9] Indian Penal Code, 1908
[10] Home | United States Sentencing Commission, , https://www.ussc.gov/ (last visited Apr 15, 2021).
[11]Criminal Justice Act 2003 (UK)
[12] Sentencing – Sentencing Council, , https://www.sentencingcouncil.org.uk/ (last visited Apr 15, 2021).
