Re t r i but i v eTheor yofPuni shment : ACr i t i calAnal ysi s January 15, 2015 by hariharan kumar Leave a Comment
By Abhishek Mohanty, WBNUJS The issue of punishment of criminals has been a well debated topic for societies since time immemorial. This has been been deba debate ted d by juri jurist sts s like like Hart Hart,, An Anth thon ony y Flew Flew and and Stan Stanle ley y Benn. The broad theor eories of punis nishment are divided into conseuentalist and retributivist theories. theories. !n this paper, paper, the author will focus on the aspects of retributivist system of punishment. The advanta"es and criticisms of this system will be also discussed. The various forms of retributivist philosophy like payback, annulment will will also also be dis discus cussed sed.. Furthe urtherr, a compar compariso ison n of the retrib retributi utivis vist t system a"ainst the other forms will also be covered. Editor’s Note:
I NTRODUCTI ON If we see A holding a knife over B’s dead body, we might conclude that A is morally and causally responsible for B’s death. However there might also be a case that A killed B in an act of self-defence. self-defence. In this case, A is only causally and not morally responsible for the death of B. How does one decide punishment in such cases !oes one on e rec ecei eive ve le less sser er pu punis nishm hmen entt or th sa same me pu puni nish shme ment nt in bo both th cases "he issue of punishment of criminals has been a well debated topic forr so fo soci ciet etie ies s si sinc nce e ti time me im imme memo mori rial al.. Br Broa oadl dly, y, pu puni nish shme ment nt wa was s de#ned by Antony $lew%&' $lew%&',, (tanley Benn%)' Benn%)' and and H*A Hart%+' Hart%+' to to be something unpleasant for an oense against legal rules which is adminstered by the society and imposed by a legal authority. An essential ingredient of a certain epressive function/ punishment is a conventional device for the epression of atitudes of resentment and indignation, and of 0udgments of disapproval and reprobation, on the part either of the punishing authority itself or of those 1in whose name’ the punishment is in2icted3%4' in2icted3%4'.. "he broad theories of puni pu nish shme ment nt ar are e di divi vide ded d in into to co cons nse5 e5ue uent ntal alis istt an and d ret etri ribu buti tivis vistt theories.%6' theories. %6' 7o 7ons nse5 e5ue uent ntal alis istt th theo eori ries es ar are e co conc ncer erne ned d wi with th th the e prac pr acti tice ce of pu puni nish shm men entt if it br brin ings gs ou outt be bett tter er co cons nse5 e5ue uenc nces es.. 8etributivist theories of punishment see it as important because it punishes the criminals in proportion to their crime thereby restoring a proper balance.
"he way how a society punishes criminals is important because of its connection to several events that happens. "he recent !elhi rape case where an increased demand for the rapists to be hanged was made inspite of our court system allowing for death penalty in very select cases and that too in the 1rarest of the rare’ case threw up the debate regarding the system of punishment which should be followed in such cases. Also, the controversy surrounding the 0uvenile 0ustice system which focusses on restorative 0ustice even in grave crimes called upon the need to look into several punishment policies.
BASI SOFRETRI BUTI VI SM "he most classic form of retributivism is derived in 7ode of Hammurabi’s le# talionis, which stands for 1an eye for an eye and a tooth for a tooth’. 9ost retributivists believe that a guilty person should suer pain. Herbert Hart de#ned retributivism as 1the application of the pains of punishment to an oender who is morally guilty’.%:' . It has been commented that retributivism is seen as making some appeal to 1moral desirabiltiy’.%;' If a thief intends to steal money from someone, he is morally responsible for the same. And because of this moral responsibility, the thief deserves punishment. "he core princples of retributivism are desert and proportionality. "he two principles are somewhat interlinked. $or retributivists, the punishment has to be proportional to the crime committed. !esert refers to some demerit which has caused the accused to commit a crime. 8etributive punishment has to be proportional to the degree of desert. "he more the desert, the more the punishment should be. 8etributivism is backward-looking. 8etributivists do not punish a criminal for what he or she might do, but only punish for the crimes one has committed and in the amount the person deserves. 8etributivists do not concern themselves with the conse5uences of the acts but only with the desert which has occurred. In the retributivist theory of punishment, the punishment is seen as a form of 1payback’ for the crimes one has committed.%<' 9ostly retributive 0ustice seeks to punish a person for a crime in a way that is compensatory for the crime. 8etributivists argue that criminals deserve punishment on account of their wrongdoing. If they deserve punishment, then 0ustice demands we punish. =e do in0ustice if we fail to punish criminals because they then do not receive what they deserve.%>' Another school of thought of retributivists sees punishment as a way to remove the 1unfair advantage’ that the criminals possess due to commission of the crime. *ike a thief bene#ts from breaking the law
by stealing someone’s possession. "he punishment meted out should remove the unlawful and unfair advantage. %&?' "he criminals are seen to be free-riders on the law-abiding community. By punishing them, the unfair advantage is wiped out.%&&' @ne view of retributuivism put forward by Hegel in early nineteenth century saw the idea of punishment to cancel, negate or annul the oender’s crime.%&)' In this view, the criminal re0ects the victim’s rights while committing a crime. If we leave the crime unpunished, it is regarded as an innocent deed. But by punishing the criminal, the status uo ante crime is restored. "his view was taken forward by Hampton who said that by the very act of commission of crime, the criminal fails to respect the victim’s value as a human being. 8eteibutive punishment vindicates the value of victim denied by the wrongdoer’s action through the construction of an event that not only repudiates the action’s message of superiority over the victim but does so in a way that con#rms them as e5ual.3%&+' In this way punishment can annul the message, sent by the crime, that they are not e5ual in value3.%&4' ow returning to the situation given in the opening, a lower punishment shall be given in the second case since there was no desert on the part of A. It was an act of private defence. "his distinction is important because the proportional punishment can only be set properly if one knows whether A is morally and causally responsible for the said act.%&6'
ADVANTAGES OF RETRI BUTI VI STTHEORY
THE
Emphasi zespr opor t i onalpuni shment 8etributivist theory focusses on punishment to only those who 1deserve’ it. nlike deterrence theory, an innocent can never be punished. (ince they are backward-looking, they are not concerned with the possibility of a person committing a crime. $or punishment to be meted out, a person must be found guilty.%&:' 8etributivist theory emphasiCes the need of proportionality of the punishment to the desert. Instead of restitution where the wrongdoes repays the society what he gained from the crime, but such a punishment is 2awed. A person who has stole a sum of money should not only give back the money but should also suer to the etent he made the victim suer.%&;' Dven if the relative seriousness of crimes cannot be 0udged in all cases, the overall severity can be 0udged. Also, such proportional punishment gives a
sort of protection against severe and disporoportional punishments for crimes.%&<' In &>;6, conse5uentalist ideas were dominant in the Dnglishspeaking countries for a century. @Ecials in the nited (tates were allowed broad discretions to individualiCe sentences. Funishment could be lengthened arbitrarily or even shortened. (uch discretion was criticiCed by the scholars of that time.%&>'
Ret r i but i vepuni shmentsendsoutamessage "he idea of punishment as a form of denunciation of the criminal and his act by the society has been envisioned by scholars like 9orris, Hampton and (ir. (ir Games (tephen put the message in the words as, "he sentence of the law is to the moral sentiment of the public in relation to any oence is what a seal is to hot wa. It converts into a permanent #nal 0udgment what might otherwise be a transient sentiment.3%)?' In his evidence to the 8oyal 7ommission on 7apital Funishment, *ord !enning observed,ultimate 0usti#cation of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.3 In the opinion of Hart, punishment should not be for sake of denunciation alone but a deserved punishment does serve as a denunciation. According to him, we do not live in society in order to condemn though we may condemn in order to live.%)&' 9orris contended that by punishing wrongdoers each citiCen learns the particular signi#cance of the evil underlying oenses and the degree of seriousness. Hampton opined that punishment is somehow representative of the pain suered by the victim of crime and hence by in2icting punishment the wrongdoer shall understand the immorality of the action. "he (upreme 7ourt in the $hananjoy %hatterjee [22] case held that appropriate punishment is the manner in which the courts respond to society’s cry for 0ustice and that 0ustice demands imposition of punishment be#tting the crime to re2ect public abhorrence.
Notmet i ng outt o puni shmenti sunf ai rt o vi ct i msand soci et y al i ke All legal systems recogniCe the need of punishment in response to crimes. If the perpetrators of crime are allowed to walk free or pay money and escape punishment, that would mean that they have not
committed any wrong. "he unfair advantage that they would have gained by seeking recourse to illegal methods would not be paid back or annulled if such a situation arises.
CRI TI CI SMS OF RETRI BUTI VI STTHEORY
THE
"he re5uirement of desert re5uired to punish crimes has in itself some diEculties. "he very nature of morality being sub0ective makes it diEcult to deliver punishments for crimes. "he immorality of crimes needs to be comparable. $or this, a sort of "old standard is re5uired to assess a crime. A society has its citiCens adhering to very dierent conceptions of good and bad. $or some, using drugs is a matter of personal liberty while for some it is seen to be an reprehensible act. ations have varying laws on sub0ects like prostitution, drug use etc. "he very 5uestion of setting a common moral standard seems every bit fair since it involves asserting one’s view over others. Hence the process of unifying morality for 1punishing evil’ is far complicaed than what it might appear. Another problem of retributivist theory is with dealing with amoral crimes. Although most crimes are both illegal and immoral like rape, murder, theft etc., there are crimes like traEc oences and 0aywalking which although illegal cannot be said to be immoral. $or eample, a overspeeding driver on an empty road cannot be said to be doing anything immoral although overspeeding constitutes an illegal act. In such crimes, the punishment cannot be set proportional to the wickedness of the crime because of the absence of wickedness. @ne strategy to tackle such situations is to claim that all crimes are immoral. But this involves imposing of morality which goes back to the #rst criticism of the theory. 8etributivists are uncomfortable with mercy and pardons. (ometimes a greater good can be achieved by pardoning a criminal instead of punishing him. However, ant famously 5uoted that if 10ustice goes, there is no longer any value in human beings living on the earth’%)+'. A bloody war is more acceptable than avoiding it through in0ustice. 9odern common law systems have a system of plea bargaining where in the accused admits to the guilt in lieu of a reduced sentence. "he state 0usti#es such sentences on the grounds of saving of tapayers’ money and courts’ time. Hence, the criminal does not get what his deserved punishment was.%)4'
COMPARI SON THEORI ES
WI TH
OTHER
Deterrence Theory & Funishment is used to deter people from committing a crime. It is divided into special deterrence and general deterrence. (pecial deterrence imposes punishment to discourage a person from committing a crime whereas general deterrence punishes an oender to make an eample out of him. However, this theory has been criticiCed because unlike retributvism, it punishes oenders before they have even committed a crime. In a way, the theory is forward-looking but in most cases the causation and eect can be very dierent. It does not re5uire desert for the crime to be punishable. Also, the idea of making an eample out of an oender runs counter to the proportional punishment which has been long championed by retributivists. Rehabilitation Theory & Although the goal of rehabilitation is to reform the oender and transform him to a law-abiding citiCen, it has long been argued that such processes have not been very successful. 9oreover, the very idea of unfair advantage which the criminal gains, makes it morally improper to epect that the criminal will reform himself to a good human being. 8etributivists stick to the point that all crimes should be punished. Hence by this idealistic thought of criminals changing to their earlier good state, retributivist forcefully re0ect the notion of such rehabilitation. Also, the very idea that a person can be sentenced until he is rehabilitated means that une5ual sentences are meted out to une5ual crimes and thus creating a wrong element of proportionality to such crimes.%)6' Restorative syste& In this system, instead of any punishment being meted out, the victim, oender and the community participate together in a process of restitution. "he oender takes complete responsibility for the crime and initiates restitution to the victim. Hence, the idea of punishment is completely discarded and is thus opposite to idea of retributivists. (uch a system is woefully inade5uate to address crimes like murder since there cannot be any restitution in such cases. It must be noted that retributivist punishment can not be meted in all cases. "he weightage given to proportionality in the retributive system of 0ustice carries with itself several advantages and disadvantages. 8etributivism ignores the oender’s future conduct or eects punishment can have on crime rates. However, in many caseslike that of 0uvenilesJ, one should take into account the eect
of punishment on the accused. Hence, a lenient and reformative system of punishment should be observed in such cases. "he idea of e5uality of punishment is actually diEcult to implement in many situations. =hat can be the punishment for crimes like rape, kidnapping, forgery and so on "he state cannot eercise the same brutality since it would be demoralising to the communtiy and also somewhat barbaric. In today’s societies, the maimum punishment that can be imposed is the death penalty which has its own critics. But however in many cases like the !elhi rape case, terrorist attacks the death penalty has been imposed and not condemned by the society.%):'
RECOMMENDATI ONS TO RETRI BUTI VI ST SYSTEM PUNI SHMENT
THE OF
nder the retributive system of punishment, the link between the victim and the accused is termed irrelevant. "he crimes are seen to be against the state. But in several cases, the victim’s relation to the accused is pivotal because of the eect that the punishment can have on the relation can be damaging.%);' "he "ruth and 8econciliation 7ommission in (outh Africa used restorative 0ustice instead of punishing the wrongdoers. "he wrongdoers could be pardoned by the victims of the crimes. "his approach was a reconcilitatory approach to deal with human-rights violation. "his approach helped the people of (outh Africa to achieve a sort of compromise without which the conse5uences of a full-2edged criminal process would have led to further racial divide already prevalent in the country. 9any scholars believe that the idea of proportionality should only prescribe maimum sentences possible in the cases. A modest theory of 1limiting retributivism’ emphasiCes on the need of punishment to be within a range of not lenient and not too severe punishment. orval 9orris viewed retributive punishments to be imprecise in their assessment.%)<' (everal other writers have proposed 2eible retributive limits on dierent grounds. $or eample, Armstrong wrote that/ the ri"ht to punish o'enders up to some limit, but one is not necessarily and invariably obli"ed to punish to the limit of justice( For a variety of reasons)like reformn" the criminal* the approporiate authority may choose to punish a man less than it is entiled to, but it is never just to punish a man more than he deserves.3%)>'
(ome utilitarian approaches to punishment like Dnds-Bene#ts proportionality also takes cogniCance about the concet of proportionality. But however, it recommends punishing in proportion to the harm caused or threatened, but only when such and to such etent that such punishment will prevent future crimes. "his theory not only takes into account the actual crime control but also the undesirable conse5uence of the sanction.%+?'
