CHANAKYA NATIONAL LAW UNIVERSITY

Final draft of project of Legal Language

On

“THEORIES OF PUNISHMENT”

Submitted to : Submitted by:

Mr.Pratyush Kaushik Sankalp Yash
Faculty of Legal Language ROLL NO.: 1969
 DECLARATION BY THE CANDIDATE
I, hereby declare that the work reported in the B.A LLB. (Hons.) Project
titled “Theories of Punishment” submitted at CHANAKYA
NATIONAL LAW UNIVERSITY, Patna is an authentic record of my
work carried under the supervision of Mr. Pratyush Kaushik I have not
submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the content of my project report.

(Signature of the candidate)

Sankalp Yashvardhan
B.A.LLB (Hons)
1st YEAR
SEMESTER 1st
CNLU, PATNA
 ACKNOWLEDGMENT

I would like to show my gratitude towards my guide Professor, Mr.

Pratyush Kaushik faculty of Legal Language , under whose guidance, I
structured my project.

I owe the present accomplishment of my project to our CNLU librarian,

who helped me immensely with the materials throughout the project and
without whom I couldn’t have completed it in the present way.

I would also like to extend my gratitude to my friend and all those unseen
hands that helped me out at every stage of my project.

THANK YOU

Sankalp Yashvardhan

SEMESTER 1st

CNLU, Patna
TABLE OF CONTENTS

1. INTRODUCTION

2. Different Kinds of Punishment given in India

3. Elements and Stages of A crime


4. Theories Discussed in Detail

5. CONCLUSIONS AND SUGGESTIONS.

6. BIBLIOGRAPHY... 

Theories of Punishment (kinds of Punishment under Criminal
Law)
SYNOPSIS-

1) INTRODUCTION

2) THEORIES OF PUNISHMENT

1) INTRODUCTION –

A Punishment is a consequence of an offense. Punishments are imposed on the wrong doers

with the object to deter them to repeat the same wrong doing and reform them into law-
abiding citizens. The kind of punishment to be imposed on the criminal depends or is
influenced by the kind of society one lives in. The aim of the different theories of
punishments is to transform the law-breakers into law-abiders.

2) THEORIES OF PUNISHMENT –

The different theories of Punishment are as follows –

• Deterrent Theory
• Retributive Theory
• Preventive Theory
• Reformative Theory
• Expiatory Theory

A) DETERRENT THEORY-

The term “Deter” means to abstain from doing an act. The main purpose of this theory is to
deter (prevent) the criminals from doing the crime or repeating the same crime in future.
Under this theory, severe punishments are inflicted upon the offender so that he abstains from
committing a crime in future and it would also be a lesson to the other members of the
society, as to what can be the consequences of committing a crime. This theory has proved
effective, even though it has certain defects.

B) RETRIBUTIVE THEORY-

This theory of punishment is based on the principle- “An eye for an eye, a tooth for a tooth”.
Retribute means to give in turn. The object of this theory is to make the criminal realize the
suffering of the pain by subjecting him to the same kind of pain as he had inflicted on the
victim. This theory aims at taking a revenge rather than social welfare and transformation.
This theory has not been supported by the Criminologists, Penologists and Sociologists as
they feel that this theory is brutal and babric.

C) PREVENTIVE THEORY –

This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea
is to keep the offender away from the society. This criminal under this theory is punished
with death, life imprisonment etc. This theory has been criticized by some jurists.

D) REFORMATIVE THEORY –

This theory is the most humane of all the theories which aims to reform the legal offenders by
individual treatment. The idea behind this theory is that no one is a born Criminal and
criminals are also humans. Under this theory, it is believed that if the criminals are trained
and educated, they can be transformed into law abiding citizens. This theory has been proved
to be successful and accepted by many jurists.

E) EXPIATORY THEORY –

Under this theory, it is believed that if the offender expiates or repents and realizes his
mistake, he must be forgiven.

What are the Different Kinds of

Punishment Practiced in India? –
Explained!
1

Six kinds of punishment were described in the original Indian Penal Code. In the year 1949
the third punishment “Penal Servitude” was removed. Now there are five kinds of
punishment under I.P.C.
They are described hereunder.
1. Death:
The punishment of death may be imposed on the following offences:—

1
ADVERTISEMENTS:
(a) Waging or attempting to wage war or abetting the waging of war against the Government
of India -Section 121 I.PC.;
(b) Abetment of mutiny actually committed – Sec. 132 of I.P.C.;
(c) Giving or fabricating false evidence upon which an innocent person suffers death – Sec.
194
(d) Murder – Section 302; We
(e) Punishment for murder by a life-convict – Sec. 303 [This Section was struck down by the
Supreme Court holding that it was unconstitutional, while disposing the case Mithu v. State
of Punjab, AIR 1983 SC 4731;
(g) Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused –
Sec. 3071.PC;
(h) Dacoity with murder – Sec. 396 I.P.C.
ADVERTISEMENTS:
The Courts have a high range of discretionary powers in passing death sentences. The death
punishment is also called “Capital Punishment”. The word “capital” means “the head or top
of the column”. Thus the capital punishment means “removal of head”, “death penalty” or
“beheading”.
It is the maximum punishment possible to be imposed on a criminal. This punishment
occupies topmost position among the grades of punishments. This punishment can be
imposed in extreme cases and rarely that too in extremely grave crimes.
The capital punishment can be imposed on a criminal who commits a pre-planned and
premeditated murder in cold blood. The offences with sections in which the death penalty can
be imposed are explained above.
Most of the developed countries have removed death sentences from their respective penal
code due toagitations caused by the suggestions of sociologists, reformists, criminologists,
etc.
In India too, there is a serious discussion on this topic. Sections from 366 to 371 of the
Criminal Procedure an. Code, 1973 explain the “Submission of Death Sentences for
Conformation”. Sections from 413 to 416 of Code, 1973 explain the provisions for
“execution, suspension, postponement of capital sentences”
(f) Abetment of suicide of a child, an insane or intoxicated person – Sec. 305 of IPC;
2. Imprisonment for Life:
Before 1955, the words “transportation for life” was used. The Code of Criminal Procedure
Amendment Act, 1955 (Act No. 26 of 1955) substituted the words “Imprisonment for life” in
place of “transportation for life”.
The general public thinks that imprisonment for life means only 14 years imprisonment, and
the convict shall be released as soon as the 14 years period is lapsed. It is wrong presumption.
Actually, the punishment under the Imprisonment for Life means imprisonment for the whole
of the remaining period of the convicted person’s natural life. During the British Rule, the
convicts under “transportation for life” was used to be deported to the Andamans and other
Colonies and were taken for ever from the society of all who were acquainted with him.
After independence, such system was stopped. Now the convicts under imprisonment for life
are imprisoned in the Prisons of the States concerned. The life convict is not entitled to
automatic release on completion of fourteen years’ imprisonment, unless on special
occasions, the Government may pass an order considering the good behaviour and conduct of
the convict remitting the balance of imprisonment for life.
3. Penal Servitude:
“Servitude” means “slavery”. “Penal Servitude” means “the convict becomes a slave of the
State” The British Courts used to impose ‘Penal Servitude” as a severe punishment next to
the Death Sentence. Generally, this punishment was imposed on Indians, who revolt against
the then British Rule.
“Penal Servitude” is coupled with the punishment of “Transportation” i.e., the convicts under
these two punishments were sent to uninhibited lands and areas, such as Andaman and
Nicobar, South Africa, etc., or to any other British territories or dominions to work in their
factories, plantations, mines, etc.
These punishments were also called “Extermination” or “Exterminating” Before the
independence, such punishments were called as “Kala Pani”. A cinema “Kala Pani” was also
picturised showing heinous circumstances in those days.
Several thousands of freedom fighters were punished under these punishments before the
independence. As soon as India got independence, our Indian Government abolished “Penal
Servitude” punishment, by the Criminal Justice Act, 1948 (Act No. 58 of 1948).
4. Imprisonment:
The Fourth kind of punishment is “Imprisonment”. It is of two descriptions, viz.—
(i) Rigorous, i.e., with hard labour; and
(ii) Simple.
(i) Rigorous Imprisonment i.e. with Hard Labour:
There are certain offences defined in the Indian Penal Code, for which rigorous imprisonment
may be imposed by the Courts. Examples: House- trespass under Section 449 of IPC;
fabricating false evidence with intent to procure conviction of an offence which is capital by
the Code (Sec. 194); etc.
For such offences, rigorous imprisonment may be imposed. In rigorous imprisonment, the
convicted person is put to do hard labour such as digging earth, cutting stones, agriculture,
grinding corn, drawing water, carpentry, etc. The Supreme Court suggested that the offenders
imposed hard labour should be paid minimum wages.
The trial Court, while disposing Bombay Blast Case (2007), sentenced Sanjay Putt, a
Bollywood Hero, for rigorous imprisonment for a period of six years. Until the Supreme
Court gave the Bail, Sanjay Dutt did carpentry work for 30 days and earned Rs. 39/- during
that period.
While disposing the case Sunil Batra v. Delhi Administration (AIR 1980 SC 1675), the
Supreme Court observed: “Hard labour in Sec. 53 has to receive a humane meaning.
A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to
break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably
be assigned congenial jobs. Sense and sympathy are not enemies of penal asylums.”
(ii) Simple imprisonment:
This punishment is imposed for the lighter offences. Examples: public servant unlawfully
engaging in trade or unlawfully buying or bidding for property (Sections 168-169);
absconding to avoid service of summons or other proceedings, or not attending in obedience
to an order from a public servant (Sections 172-174); to obstruct traffic or cause public
nuisance; eve- teasing, drunken brawls, etc.; refusing oath when duly required to take oath by
a public servant (Section 178); wrongful restraint (Sec. 341); defamation (Sec. 500) etc.
Solitary Confinement:
Section 73 of the Code empowers the Courts to impose solitary confinement to certain
persons and in relation to certain offences. This punishment is also part of the imprisonment.
A harsh and hardened convict may be confined in a separate cell to correct his conduct. He is
put separately without intercourse with other prisoners. All connections are severed with
other world.
The object of this punishment is to reform the hardened and habitual offender and in order to
experience him with loneliness. There are certain restrictions in imposing solitary
confinement. They are:—
(a) Solitary confinement should not exceed three months of the whole term of imprisonment.
(b) . It cannot be awarded where imprisonment is not part of the substantive sentence.
(c) It cannot be awarded where imprisonment is in lieu of fine.
(d) It cannot also be awarded for the whole term of imprisonment. Further according to
Section 73, the following scale shall be adhered,—
(i) Time not exceeding one month if the term of imprisonment shall not exceed six months;
(ii) A time not exceeding two months if the term of imprisonment shall exceed six months
and shall not exceed one year;
(iii) A time not exceeding three months if the term of imprisonment shall exceed one year.
In several European countries, including Great Britain, this punishment was repealed.
Section 74 limits the solitary confinement. If it is imposed for a long time, it adversely affects
on human beings and creates mental derangement.
This Section says that solitary confinement shall in no case exceed fourteen days at a time
with intervals between the periods of solitary confinement of not less duration than such
periods, and when the imprisonment awarded shall exceed three months, such confinement
shall not exceed seven days in any one month of the whole imprisonment awarded, with
intervals between the periods of solitary confinement of not less duration than such periods.
Enhanced Punishment:
Section 75 the Code permits to impose enhanced punishment for certain offences under
Chapter-XII or Chapter-XVII after previous convictions.
According to this Section, whoever, having been convicted by a Court in India, of an offence
punishable under Chapter-XII or Chapter-XVII of this Code, with imprisonment of either
description for a term of three years or upwards, shall be guilty of any offence punishable
under either of those Chapters with like imprisonment for the like term, shall be subject for
every such subsequent offence to imprisonment for life, or to imprisonment of either
description for a term which may extend to ten years, as Chapter-XII, containing Sections
230 to 263-A, explains about the offences relating to coins and Government Stamps.
Chapter-XVII containing Sections 378 to 462 explains the offences against property, i.e.,
theft, extortion, robbery, dacoity, criminal misappropriation of property, criminal breach of
trust, receiving of stolen property, cheating, mischief and criminal trespass.
Conditions for imposing enhanced punishment:—
(a) The accused must have been previously convicted;
(b) Such conviction must be for any offence mentioned in Chapter-XII or XVII; to
(c) Such previous conviction must have been for an offence punishable for not less than three
ea years;
(d) Subsequent offence must also be punishable with imprisonment for not less than three
years.
5. Forfeiture of Property:
“Forfeiture” is the divestiture of specific property without compensation in consequence of
some default or act of forbidden by law. The Courts may order for forfeiture of property of
the accused in certain occasions.
In white collar crimes, and where a Government employee or any private person accumulates
black money and black assets, and there is no genuine answer and proof for such money and
properties with such person, the Court may award for forfeiture of property.
In cases of smugglers, goondas, anti-national personalities, etc., the Government or the
Courts are empowered to forfeiture of property of such anti-social elements.
6. Fine:
The Courts may impose fine along with or without imprisonment. The Indian Penal Code
mentions the punishment of fine for several offences, generally with or without
imprisonment.
Amount of fine:
According to Section 63, where no sum is expressed to which a fine may extend, the amount
of fine to which the offender is liable is unlimited, but shall not be excessive.
Sentence of imprisonment for non-payment of fine:
According to Section 64, in every case of an offence punishable with imprisonment as well as
fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and
in every case of an offence punishable with imprisonment or fine, or with fine only, in which
the offender is sentenced to a fine, it shall be competent to the Court which sentences such
offender to direct by the sentence that, in default of payment of the fine, the offender shall
suffer imprisonment for a certain term, which imprisonment shall be in excess of any other
imprisonment to which he may have been sentenced or to which he may be liable under a
commutation of a sentence.
Limit to imprisonment if fine imposed is not paid:
Section 65 lays down that the term for which the Court directs the offender to be imprisoned
in default of payment of a fine shall not exceed one- fourth of the term of imprisonment
which is the maximum fixed for the offence, if the offence be punishable with imprisonment
as well as fine.
Description of imprisonment for non-payment of fine:
Section 66 lies down that the imprisonment which the Court imposes in default of payment of
a fine may be of any description to which the offender might have been sentenced for the
offence.
Imprisonment for non-payment of fine when offence punishable with fine only:
According to Section 67, if the offence be punishable with fine only, the imprisonment which
the Court imposes in default of payment of the fine shall be simple, and the term for which
the Court directs the offender to be imprisoned, in default of payment of fine, shall not
exceed the following scale,—
When the fine shall not exceed fifty rupees – the term of imprisonment shall not exceed two
months;
Termination of imprisonment on payment of fine:
According to Section 68, whenever the fine is paid the imprisonment shall be terminated
forthwith.
According to Section 69, if, before the expiration of the term of imprisonment fixed in default
of payment, such a proportion of the fine be paid or levied that the term of imprisonment
suffered in default of payment is not less than proportional to the part of the fine still unpaid,
the imprisonment shall terminate.
Illustration:
A is sentenced to a fine of one hundred rupees and to four months’ imprisonment in default of
payment. Here, if seventy-five rupees of the fine be paid or levied before the expiration of
one month of the imprisonment, A will be discharged as soon as the first month has expired.
If seventy five rupees be paid or levied at the time of the expiration of the first month, or at
any later time while A continues in imprisonment, A will be immediately discharged.
If fifty rupees of the fine be paid or levied before the expiration of two months of the
imprisonment, A will be discharged as soon as the two months are completed. If fifty rupees
be paid or levied at the time of the expiration of those two months, or at any later time, while
A continues in imprisonment, A will be immediately discharged.
Fine vs. Imprisonment:
It is the general presumption that if the offender passes the imprisonment in default of fine
imposed upon him, such imprisonment shall liberate the fine. It is wrong presumption.
Section 70 says that fine and imprisonment for default of fine are two different things.
Imprisonment for default of fine shall not liberate the offender from his liability to pay the
full amount of fine imposed upon him. Imprisonment in default of fine is not a satisfaction
for the fine, but it is a punishment for non-payment or contempt or resistance to the due
execution of the sentence.
Such fine shall be recoverable from the offender within six years from the date of sentence
passed by the trial Court or during imprisonment. Fine may be recovered from the property of
the offender. Death of the offender shall not discharge property from liability.
Each society has its own way of social control for which it frames certain laws and also mentions the
sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in
relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that
one or other of the proposed justifications of punishments either logically include or logically excluded
by definition.’ Punishment has the following features: 

# It involves the deprivation of certain normally recognized rights, or other measures considered
unpleasant

# It is consequence of an offence

# It is applied against the author of the offence

# It s applied by an organ of the system that made the act an offence.



The kinds of punishment given are surely influenced by the kind of society one lives in. Though during
ancient period of history punishment was more severe as fear was taken as the prime instrument in
preventing crime. But with change in time and development of human mind the punishment theories
have become more tolerant to these criminals. Debunking the stringent theories of punishment the
modern society is seen in loosening its hold on the criminals. The present scenario also witnesses the
opposition of capital punishment as inhumane, though it was a major form of punishing the criminals
earlier. But it may also be observed till recently the TALIBANS used quite a harsh method for
suppression. The law says that it does not really punish the individual but punishes the guilty mind.



As punishment generally is provided in Criminal Law it becomes imperative on our part to know what
crime or an offence really is. Here the researcher would like to quote Salmond’s definition of crime:
Crime is an act deemed by law to be harmful for the society as a whole though its immediate victim
may be an individual. He further substantiates his point of view through the following illustration a
murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a
mater of mere compensation between the murderer and the victim’s family.



Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be
used as a method of educing the incidence of criminal behavior either by deterring the potential
offenders or by incapacitating and preventing them from repeating the offence or by reforming them
into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of
punishment namely: Deterrent, Retributive, Preventive and Reformative.

Punishment, whether legal or divine, needs justification. Because the justification of legal punishment
has been given greater consideration by philosophers than has the justification of divine punishment
by theologians, the philosophical concepts and 'theories of punishment’ (i.e. the justifications) will be
used as a basis for considering divine punishment.



Many a time this punishment has been termed as a mode of social protection. The affinity of
punishment with many other measures involving deprivation by the state morally recognized rights is
generally evident. The justifiability of these measures in particular cases may well be controversial,
but it is hardly under fire. The attempt to give punishment the same justification for punishment as for
other compulsory measures imposed by the state does not necessarily involve a particular standpoint
on the issues of deterrence, reform or physical incapacitation. Obviously the justification in terms of
protection commits us to holding that punishment may be effective in preventing social harms through
one of these methods.



As punishments generally punish the guilty mind it becomes very important on the part of the
researcher to what crime really is. But it is quite difficult on the part of the researcher to say whether
or not there must be any place for the traditional forms of punishment. In today’s world the major
question that is raised by most of the penologist is that how far are present ‘humane’ methods of
punishment like the reformative successful in their objective. It is observed that prisons have become
a place for breeding criminals not as a place of reformation as it was meant to be.



It may be clearly said that the enactment of any law brings about two units in the society- the law-
abiders and the law-breakers. It is purpose of these theories of punishment to by any means
transform or change these law-breakers to the group of abiders. To understand the topic the
researcher would like to bring about a valid relation between crime, punishment and the theories.



For that purpose the project is divided into three parts:

# Crime and Punishment

# Theories of punishment

# Conclusion

The researcher due to certain constraints of limited time and knowledge is unable to cove the area of
the evolution of these theories separately but would include them in the second chapter. The
researcher would now like to move on to his first chapter in which he would be vividly discussing
‘crime and punishment.’

The researcher in his first draft had included the chapter on the evolution of the theories from the
early ages to the modern era, but due to certain limitations included them and discussed them during
the due course of the project.
Crime And Punishment
Crime: n., & v.t. 1. Act (usu. grave offence) punishable by law; shameful act 2. charge with or convict
of offence. 

Punishment: n. Punishing or being punished; penalty inflicted on the offender; 

Punish: 1. Cause to suffer for offence, chastise, inflict penalty on offender for his crime.



One can surely observe how closely are crime and punishment related. The researcher would in this
chapter precisely like to stress on this point itself.

Crime is behaviour or action that is punishable by criminal law. A crime is a public, as opposed to a
moral, wrong; it is an offence committed against (and hence punishable by) the state or the
community at large. Many crimes are immoral, but not all actions considered immoral are illegal.



In different legal systems the forms of punishment may be different but it may be observed that all
arise out of some action or omission. All these constitute all moral as well as legal wrongs such as
murder, rape, littering, theft, trespass and many more. As crime is quite different in different
geographical area it is quite evident that the forms of punishment would vary as it was mentioned
earlier that punishment as well as crime are socially determined. A type of action may be a crime in
one society but not in another. For example euthanasia is an offence in India, but in many European
coutries such as Holland it is legalized. But there are certain offences which are recognized almost
universally like murder.



Durkheim explains crime, as crime exists in every society which do and do not have laws, courts and
the police. He asserts that all societies have crime, since all societies involve a differentiation between
two kinds of actions, those that are allowed and those that are forbidden. He calls the latter type
criminal.

Law is the string that binds society, and he who attempts to break the string is a danger to the society
as a whole and dealt with sternly by the powerful arms of law. Punishment though most times
confused with imprisonment is something much different from it. Punishment though most times
confused only with sanctions may also be of moral nature like ostracism. Punishment, whether legal
or divine, needs justification. Because the justification of legal punishment has been given greater
consideration by philosophers than has the justification of divine punishment by theologians, the
philosophical concepts and 'theories of punishment, (i.e. the justifications) will be used as a basis for
considering divine punishment.



A complete definition will now be made in such a way as to include both legal and divine punishment.
A.Flew first suggests that punishment must be an evil, an unpleasantness to the victim. J. Mabbot
objects to the use of the word 'evil' in connection with punishment. He maintains that 'evil' carries too
much moral flavour and also that it suggests positive suffering. Mabbot states: The world is a worse
place the more evil there is in it and perhaps the more suffering. But it does not seem to me
necessarily a worse place whenever men are deprived of something they would like to retain; and this
is the essence of modern punishment. While deprivation may be a more appropriate description of
modern punishment this does not necessarily exempt it from being an evil. Nor does the suggestion
that 'evil' carries a moral flavour, for in fact the word punishment itself carries a moral flavour. (Like
'evil', punishment is not in itself a moral term but it is suggested that it usually occurs in an ethical
context.) While we must eventually come to some conclusion as to whether punishment is an evil, it
would be preferable at present to use, as does W. Moberly, the slightly more neutral term 'ill'.



Both of these thinkers of punishment believe that the offender must be answerable for any wrong that
he has done. K. Baier explains punishment as law-making, penalisation, finding guilty, pronouncing a
sentence. In a legal context law-making is a necessary condition, but it is possible to commit a
wrongdoing intentionally although no law has been made, in fact it is because certain acts are
considered wrong that laws are made in the first place. What is important to note is that punishment is
a conditional act and cannot be isolated from its total context.



But Durkhaeim has a different approach to punishment altogether. He treats punishment as the
reaction of the society against a crime. According to him a if punishment be a proportionate response
to the harm caused to the society then the extent of the punishment inflicted must be clearly sorted
out. He also stressed on the point that punishment can never be calculated; it is an intensely
emotional- sense of outrage- the desire to exact punishment. He says, It is not the specific nature or
result of the offending action as such which matter, but he fact that the action transgresses widely
shared ad strongly held sentiments, whatever these might be in any particular case. He explains that
if punishment is a reaction of the society against the offenders then it is generally in the form of an
outrage or anger thus rather being reparative or reformative becomes punitive. This approach of the
society towards the criminals is what makes us treat them as outcasts and treated as an deviant from
the social norms. This two-fold approach has been criticized severely by various penologists, as at
one time there is the use of both reformative and retributive theories.



Punishment and crime are very strange phenomena to deal with. It is only if the acts done are within
the course of the provisions provided under the Code then any benefits take out of it is not
questioned. But any action through which maybe the same benefit is gained still the person may be
punished as because his action was not within the scope of the provisions. Also there are certain
elements in the society who though do many immoral acts but as because any provisions or sanctions
are not mentioned so that they can be punished they continue to do that act. One should not earn any
benefits or satisfaction out of such acts.



The legitimacy of any form of has always been criticized. Though there are many legal coercive
measures but it is quite different from punishment. If the punishment were any retribution to an evil
done then regardless of any consequence it would try to end that evil in itself. But if the objective of
the punishment given is to prevent the crime from further occurrence then it would rather than using
coercive methods it would be using persuasive measures and discourage the offender from
committing that act in the future. Treating punishment as a conventional device for the expression of
resentment, indignation, disappointment felt either by the sufferer and his family or the punishing
authority as such J.Feinberg argues that certain kinds of severe treatment become symbolic of the of
the attitudes and judgement of the society or community in the face of the wrongdoing, and constitute
a stigma which castes shame and ignominy on the individual on whom the punishment is applied. The
distinctiveness of the unpleasant measure could consist of the way of executing them. Thus,
summarizing the concept of punishment one can suggest that punishment includes the following
areas:

# Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.

# It is a sequel of a wrongful act

# There must be some relationship between the punishment inflicted and the crime committed.

# The punishment is a form by which a criminal is made answerable to the society.

Theories of Punishment:
With 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 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.



The researcher in this chapter would like to discuss the various theories and explain the pros and
cons of each theory. The researcher’s main aim in this chapter is to show the evolution of the theories
as such.

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 form repeating that crime. Those who commit a crime, it is
assumed, derive a mental satisfaction or a feeling of enjoyment in the act. 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 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.

J. Bentham, as the founder of this theory, states:

"General prevention ought to be the chief end of punishment as its real justification. If we could
consider an offence, which has beeen, committed as an isolated fact, the like of which would never
recur, punishment would be useless. It would only be only adding one evil to another. But when we
consider that an unpunished crime leaves the path of crime open, not only to the same delinquent but
also to all those who may have the same motives and opportunities for entering upon it, we perceive
that punishment inflicted on the individual becomes a source of security for all. That punishment
which considered in itself appeared base and repugnant to all generous sentiments is elevated to the
first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or
unfortunate individual who has given way to mischievous inclinations, but as an indispensable
sacrifice to the common safety."



Bentham's theory was based on a hedonistic conception of man and that man as such would be
deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that
punishment is an evil, he says, If the evil of punishment exceeds the evil of the offence, the
punishment will be unprofitable; he will have purchased exemption from one evil at the expense of
another.



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.



"While a person goes on seeking pleasure, he also takes steps to avoid pain. This is a new system of
political philosophy and ethics developed by Jerome Bentham and John Stuart Mill in the 19th century
called Utilitarianism. It postulates human efforts towards "maximization of pleasure and maximum
minimization of pain" as the goal. "The main ethical imperative of utilitarianism is: the greatest good
for the largest number of people; or the greatest number of goods for the greatest number of people"
The fear of consequent punishment at the hands of law should act as a check from committing crimes
by people. The law violator not merely gets punishment, but he has to undergo an obnoxious process
like arrest, production before a magistrate, trial in a criminal court etc. that bring about a social stigma
to him as the accused. All these infuse a sense fear and pain and one thinks twice before venturing to
commit a crime, unless he is a hardcore criminal, or one who has developed a habit for committing
crimes. Deterrent theory believes in giving exemplary punishment through adequate penalty."



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

The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This
theory underlines the idea of vengeance and revenge rather than that of social welfare and security.
Punishment of the offender provides some kind solace to the victim or to the family members of the
victim of the crime, who has suffered out of the action of the offender and prevents reprisals from
them to the offender or his family. The only reason for keeping the offender in prison under unpleasant
circumstances would be the vengeful pleasure of sufferer and his family. J.M.Finnis argues in favour
of retributism by mentioning it as a balance of fairness in the distribution of advantages and
disadvantages by restraining his will. Retributivists believe that considerations under social protection
may serve a minimal purpose of the punishment. Traditional retributism relied on punishing the
intrinsic value of the offence and thus resort to very harsh methods. This theory is based on the same
principle as the deterrent theory, the Utilitarian theory. To look into more precisely both these theories
involve the exercise of control over the emotional instinctual forces that condition such actions. This
includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive
outbursts.



Sir Walter Moberly states that the punishment is deemed to give the men their dues. "Punishment
serves to express and to and to satisfy the righteous indignation which a healthy community treats as
transgression. As such it is an end in itself."



"The utilitarian theories are forward looking; they are concerned with the consequences of
punishment rather than the wrong done, which, being in the past, cannot be altered. A retributive
theory, on the other hand, sees the primary justification in the fact that an offence has been committed
which deserves the punishment of the offender." As Kant argues in a famous passage:

"Judicial punishment can never be used merely as a means to promote some other good for the
criminal himself or civil society, but instead it must in all cases be imposed on him only on the ground
that he has committed a crime; for a human being can never be manipulated merely as a means to
the purposes of someone else... He must first of all be found to be deserving of punishment before
any consideration is given of the utility of this punishment for himself or his fellow citizens."



"Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one.
Punishment is an end in itself. Retribution could also be said to be the 'natural' justification" , in the
sense that man thinks it quite natural and just that a bad person ought to be punished and a good
person rewarded. 

However 'natural' retribution might seem, it can also be seen as Bentham saw it, that is as adding one
evil to another, base and repugnant, or as an act of wrath or vengeance. Therefore as we consider
divine punishment we must bear in mind, as Rowell says, The doctrine of hell was framed in terms of
a retributive theory of punishment, the wicked receiving their just deserts, with no thought of the
possible reformation of the offender. In so far as there was a deterrent element, it related to the
sanction hell provided for ensuring moral conduct during a man's earthly life.



Thus the researcher concludes that this theory closely related to that of expiation as the pain inflicted
compensates for the pleasure derived by the offender. Though not in anymore contention in the
modern arena but its significance cannot be totally ruled out as fear still plays an important role in the
minds of various first time offenders. But the researcher feels that the basis of this theory i.e.
vengeance is not expected in a civilized society. This theory has been severely criticized by modern
day penologists and is redundant in the present punishments.

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



Fitchte in order to explain this in greater details puts forward the an illustration, An owner of the land
puts an notice that ‘trespassers’ would be prosecuted. He does not want an actual trespasser and to
have the trouble and expense of setting the law in motion against him. He hopes that the threat would
render any such action unnecessary; his aim is not to punish trespass but to prevent it. But if trespass
still takes place he undertakes prosecution. Thus the instrument which he devised originally consist of
a general warning and not any particular convictions.



Thus it must be quite clear now by the illustration that the law aims at providing general threats but
not convictions at the beginning itself. Even utilitarian such as Bentham have also supported this
theory as it has been able to discourage the criminals from doing a wrong and that also without
performing any severity on the criminals. The present day prisons are fallout of this theory. The
preventive theory can be explained in the context of imprisonment as separating the criminals from
the society and thus preventing any further crime by that offender and also by putting certain
restrictions on the criminal it would prevent the criminal from committing any offence in the future.
Supporters of this theory may also take Capital Punishment to be a part of this theory. A serious and
diligent rehabilitation program would succeed in turning a high percentage of criminals away from a
life of crime. There are, however, many reasons why rehabilitation programs are not commonly in
effect in our prisons. Most politicians and a high proportion of the public do not believe in rehabilitation
as a desirable goal. The idea of rehabilitation is considered mollycoddling. What they want is
retribution, revenge, punishment and suffering.



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
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 author of the above excerpt in this concluding paragraph underlines the basic principle of the
reformative theory. It emphasizes on the renewal of the criminal and the beginning of a new life for
him.



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.



Reform in the deterrent sense implied that through being punished the offender recognized his guilt
and wished to change. The formal and impressive condemnation by society involved in punishment
was thought to be an important means of bring about that recognition. Similarly, others may be
brought to awareness that crime is wrong through another's punishment and, as it were, 'reform'
before they actually commit a crime. But, although this is indeed one aspect of rehabilitation, as a
theory rehabilitation is more usually associated with treatment of the offender. A few think that all
offenders are 'ill' and need to be 'cured' but the majority of criminologists see punishment as a means
of educating the offender. This has been the ideal and therefore the most popular theory in recent
years. However, there is reason to believe this theory is in decline and Lord Windlesham has noted
that if public opinion affects penal policy, as he thinks it does, then there will be more interest shown in
retribution in the future.



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 have their own pros and cons and each being
important in it, none can be ignored as such.



Conclusion

The researcher at the end of this project finds punishment as a method of social control. He would like
to summarize his understanding about the teories of punishment:

# There is an attempt to portray punishments as a method of inflicting of unpleasant circumstances
over the offender.



# Though certain theories like the reformative and preventive rely upon humanitarian modes of
punishment, but these have a weakness against the hardcore criminals.



# Punishments such as the retributive and deterrence though the use of fear as an instrument to curb
the occurrence of crime helps in controlling the criminals up to a certain extent. As these employ the
idea of revenge and vengeance these are much more harsher than others.



The researcher would like to add his own views on this very controversial topic. We all know that truth
is stranger than fiction and so is the practice of these theories. Though prisons are meant to be the
place where the criminals would be corrected or for that case deterred from committing a wrong in the
future, but the present day witnesses the prisons to have become redundant in their objective and
becoming sites of breeding for hardcore criminals. This is a fact that the penologists must look into.
Furthermore the techniques applied in executing the punishment are not fool proof, for e.g. the
criminals are able to carry on their illegal activities even during serving the period of sentence.
Though in theory all of the punishments discussed above may seem perfect if used collectively, but
this all becomes a mere joke when tried to implicate in the practical sense.
 The Elements and Stages of a Crime

An Overview
Criminal law is a body of rules and statutes that defines conduct prohibited by the state because it threatens
and harms public safety and welfare and that establishes punishment to be imposed for the commission of
such acts. Criminal law differs from civil law, whose emphasis is more on dispute resolution than in
punishment.



The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define
crimes and prescribe punishments. In contrast, Criminal Procedure describes the process through which the
criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The
manner in which state enforces this substantive law—through the gathering of evidence and prosecution—
is generally considered a procedural matter.



II. History: The first civilizations generally did not distinguish between civil law and criminal law. The
first written codes of law were designed by the Sumerians around 2100-2050 BC. Another important early
code was the Code Hammurabi, which formed the core of Babylonian law. These early legal codes did not
separate penal and civil laws. Of the early criminal laws of Ancient Greece only fragments survive, e.g.
those of Solon and Draco.



After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence
provided the foundations of the distinction between criminal and civil law in European law from then until
the present time. The first signs of the modern distinction between crimes and civil matters emerged during
the Norman invasion of England. The special notion of criminal penalty, at least concerning Europe, arose
in Spanish Late Scolasticism, when the theological notion of God's penalty (poena aeterna) that was
inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal
law. The development of the state dispensing justice in a court clearly emerged in the eighteenth century
when European countries began maintaining police services. From this point, criminal law had formalized
the mechanisms for enforcement, which allowed for its development as a discernible entity.



III. Definition Of Crime: Many jurists have defined crime in their own ways some of which are as under:

· Blackstone defined crime as an act committed or omitted in violation of a public law either forbidding or
commanding it.

· Stephen observed a crime is a violation of a right considered in reference to the evil tendency of such
violation as regards the community at large.

· Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or injurious to the
public welfare.



IV. Fundamental Elements Of Crime: There are four elements which go to constitute a crime, these are:-

· Human being

· Mens rea or guilty intention

· Actus reus or illegal act or omission

· Injury to another human being



Human Being- The first element requires that the wrongful act must be committed by a human being. In
ancient times, when criminal law was largely dominated by the idea of retribution, punishments were
inflicted on animals also for the injury caused by them, for example, a pig was burnt in Paris for having
devoured a child, a horse was killed for having kicked a man. But now, if an animal causes an injury we
hold not the animal liable but its owner liable for such injury.



So the first element of crime is a human being who- must be under the legal obligation to act in a particular
manner and should be a fit subject for awarding appropriate punishment.



Section 11 of the Indian Penal Code provides that word ‘person’ includes a company or association or
body of persons whether incorporated or not. The word ‘person’ includes artificial or juridical persons.



Mens Rea- The second important essential element of a crime is mens rea or evil intent or guilty mind.
There can be no crime of any nature without mens rea or an evil mind. Every crime requires a mental
element and that is considered as the fundamental principle of criminal liability. The basic requirement of
the principle mens rea is that the accused must have been aware of those elements in his act which make
the crime with which he is charged.



There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which means that,
the guilty intention and guilty act together constitute a crime. It comes from the maxim that no person can
be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind.



Actus Reus [Guilty Act Or Omission] - The third essential element of a crime is actus reus. In other
words, some overt act or illegal omission must take place in pursuance of the guilty intention. Actus reus is
the manifestation of mens rea in the external world. Prof. Kenny was the first writer to use the term ‘actus
reus’. He has defined the term thus- “such result of human conduct as the law seeks to prevent”.



Injury- The fourth requirement of a crime is injury to another person or to the society at large. The injury
should be illegally caused to any person in body, mind, reputation or property as according to Section 44 of
IPC, 1860 the injury denotes any harm whatever illegally caused to any person in body, mind, reputation or
property.



V. Stages Of A Crime If a person commits a crime voluntarily or after preparation the doing of it involves
four different stages. In every crime, there is first intention to commit it, secondly, preparation to commit
it, thirdly, attempt to commit it and fourthly the accomplishment. The stages can be explained as under-



1. Intention- Intention is the first stage in the commission of an offence and known as mental stage.
Intention is the direction of conduct towards the object chosen upon considering the motives which suggest
the choice. But the law does not take notice of an intention, mere intention to commit an offence not
followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at
this stage is that it is very difficult for the prosecution to prove the guilty mind of a person.



2. Preparation- Preparation is the second stage in the commission of a crime. It means to arrange the
necessary measures for the commission of the intended criminal act. Intention alone or the intention
followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable
because in most of the cases the prosecution has failed to prove that the preparations in the question were
made for the commission of the particular crime.



If A purchases a pistol and keeps the same in his pocket duly loaded in order to kill his bitter enemy B, but
does nothing more. A has not committed any offence as still he is at the stage of preparation and it will be
impossible for the prosecution to prove that A was carrying the loaded pistol only for the purpose of killing
B.



Preparation When Punishable- Generally, preparation to commit any offence is not punishable but in
some exceptional cases preparation is punishable, following are some examples of such exceptional
circumstances-



· Preparation to wage war against the Government - Section 122, IPC 1860;



· Preparation to commit depredation on territories of a power at peace with Government of India- Section
126, IPC 1860;



· Preparation to commit dacoity- Section 399, IPC 1860;



· Preparation for counterfeiting of coins or Government stamps- Sections 233-235, S. 255 and S. 257;



· Possessing counterfeit coins, false weight or measurement and forged documents. Mere possession of
these is a crime and no possessor can plead that he is still at the stage of preparation- Sections 242, 243,
259, 266 and 474.



3. Attempt- Attempt is the direct movement towards the commission of a crime after the preparation is
made. According to English law, a person may be guilty of an attempt to commit an offence if he does an
act which is more than merely preparatory to the commission of the offence; and a person will be guilty of
attempting to commit an offence even though the facts are such that the commission of the offence is
impossible. There are three essentials of an attempt:-



· Guilty intention to commit an offence;



· Some act done towards the commission of the offence;



· The act must fall short of the completed offence.



Attempt Under The Indian Penal Code, 1860- The Indian Penal Code has dealt with attempt in the
following four different ways-

· Completed offences and attempts have been dealt with in the same section and same punishment is
prescribed for both. Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131, 152, 153-A,
161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.



· Secondly, attempts to commit offences and commission of specific offences have been dealt with
separately and separate punishments have been provided for attempt to commit such offences from those
of the offences committed. Examples are- murder is punished under section 302 and attempt to murder to
murder under section 307; culpable homicide is punished under section 304 and attempt to commit
culpable homicide under section 308; Robbery is punished under section 392 and attempt to commit
robbery under section 393.



· Thirdly, attempt to commit suicide is punished under section 309;



· Fourthly, all other cases [where no specific provisions regarding attempt are made] are covered under
section 511 which provides that the accused shall be punished with one-half of the longest term of
imprisonment provided for the offence or with prescribed fine or with both.



4. Accomplishment Or Completion- The last stage in the commission of an offence is its
accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he will be
guilty of the complete offence and if his attempt is unsuccessful he will be guilty of an attempt only. For
example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of
murder and if B is only injured, it will be a case of attempt to murder.
 CONCLUSION & SUGGESTIONS

The fact that a practice exists does not automatically imply that it is, or
can be, consistently justified in its given form (even if this may have been
the case in the past). The practice of punishment, it has been argued, is a
morally problematic practice and therefore needs a consistent (moral)
justification. The present study explored the justification of the Dutch
practice of punishment from one particular perspective. The aim of the
study was to determine whether or not a consistent legitimising
framework, either founded in or derived from moral legal theory,
underlies the institution and practice of legal punishment in the
Netherlands.
In order to investigate the link between moral theory of punishment and
the practice of punishment the first step was to explore whether concepts
derived from moral legal theory have a meaning for criminal justice
officials. Furthermore, it was necessary to explore how these concepts, as
utilised by judges, interrelate. The gamut of perspectives concerning the
justification and goals of punishment was narrowed down to three main
categories: Retributivism, Utilitarianism and Restorative Justice.
Retributivist theories are retrospective in orientation. The general
justification for retributive punishment is found in a disturbed moral
balance in society; a balance that was upset by a past criminal act.
Infliction of suffering proportional to the harm done and the culpability of
the offender (desert) is supposed to have an inherent moral value and to
restore that balance.
Utilitarian theories are forward-looking. Legal punishment provides
beneficial effects (utility) for the future that are supposed to outweigh the
suffering inflicted on offenders. This utility may be achieved, through
punishment, by individual and general deterrence, incapacitation,
rehabilitation and resocialisation, and the affirmation of norms.
Restorative justice emphasises the importance of conflict-resolution
through the restitution of wrongs and losses by the offender. The victim of
a crime and the harm suffered play a central role in restorative justice.
The main objective is to repair or compensate the harm caused by the
offence.
The central concepts of these three approaches to legal punishment were
systematically operationalised as a pool of attitude statements to enable
the measurement and modelling of penal attitudes. As a result of two
extensive studies involving Dutch law students, this measurement
instrument was refined, replicated, and validated. Based on the results of
the second study with law students, a theoretically integrated (structural)
model of penal attitudes was formulated. Following the two studies with
law students, data were collected from judges in Dutch courts. Almost
half of all judges working full-time in the criminal law divisions of the
district courts and the courts of appeal cooperated with the study.
Analyses revealed a number of interesting findings.
In the past it had been asserted that there is much conceptual confusion
among Dutch judges as to the meaning of various goals and functions of
punishment (cf. Chapter 3). In contrast, the present study shows that the
relevant concepts are consistently measurable and meaningful for Dutch
judges. In both student samples as well as in the judges’ sample
Deterrence, Incapacitation, Rehabilitation (Utilitarian concepts) and
Desert and restoring the Moral Balance (Retributive concepts) could be
represented by five separate, internally consistent scales. The approach of
Restorative Justice could be empirically represented by a single
homogeneous attitude scale in all three samples. As such, unlike
Retributivism and Utilitarianism, Restorative Justice was the only
approach that was reflected by a single dimension and thus appears to
offer a more integrated account of punishment than the other
approaches. To our knowledge (see literature review in Chapter 3) this is
the first study to have successfully operationalised Restorative Justice and
to position it empirically amongst the more traditional approaches to
criminal justice. It was, however, the factor least supported by judges. An
examination of the theoretically integrated model of penal attitudes
amongst judges confirmed earlier findings with law students: in three
different samples, the two student samples and the sample of judges,
(basically) the same structure in penal attitudes was found. Further
analyses revealed that instead of mirroring any particular approach or
theoretical framework exclusively, the overall structure of Dutch judges’
penal attitudes reflects a streamlined and pragmatic approach to
punishment. Two clusters of substantially correlated concepts were
identified in judges’ attitudes. These included Deterrence, Incapacitation,
Desert, and restoring the Moral Balance on the one hand and
Rehabilitation and Restorative Justice on the other. The first set includes
concepts generally associated with punitiveness, or, rather, harsh
treatment of offenders. The second set involves socially constructive
aspects of the reaction to offending. Rehabilitation involves socially
constructive aspects of the offender and his position in society, while
Restorative Justice is concerned with socially constructive aspects of the
victim’s position and the relationship between victim and offender. The
fact that Restorative Justice and Rehabilitation turned out to be strongly
correlated may seem awkward from a theoretical point of view. After all,
an important impetus for the development of the Restorative Justice
approach has been a high degree of dissatisfaction with the existing
retributive and utilitarian approaches. Two explanations come to mind.
First, there is an inclination in the Netherlands to regard restorative
aspects as means of helping to bring about behavioural changes in
offenders. Second, the Restorative Justice paradigm does not disqualify
rehabilitation and resocialisation of offenders. Though not the primary
objective, resocialising effects of a restorative intervention are regarded
as probable and desirable spin-offs (e.g., Bazemore & Maloney, 1994;
Walgrave, 1994; Weitekamp, 1992). In penal practice both views may
therefore be regarded as complementary.
Moreover, this empirical finding can be taken as an illustration of how an
alternative paradigm (like Restorative Justice) may become incorporated
in or perhaps even corrupted by the existing criminal justice system, thus
losing its identity as a true alternative paradigm (cf. Levrant, Cullen,
Fulton, & Wozniak, 1999). This finding may also lead one to ponder
on opportunities for a theoretical integration of Restorative Justice and the
utilitarian view of Rehabilitation. However, both views share an important
weakness that cannot be resolved by integration. This is the lack of a
limiting and guiding negative principle, since both views are quite
indifferent to the (unintended) punitive effects of an intervention.
Furthermore, since rehabilitation is a likely and beneficial spin-off of
restorative actions (perhaps even more so than interventions explicitly
aimed at rehabilitation), little is to be gained from such integration. A final
note on the association between Restorative Justice and Rehabilitation in
the minds of Dutch magistrates relates to our operationalisation of
Restorative Justice.
For the purpose of this study we concentrated on a modest (i.e.,
immanent; see Chapter 2), less radical version of Restorative Justice. A
radical version would, with the current group of respondents, presumably
have led to Restorative Justice being represented by a dimension much
isolated from the other concepts in the study.
In essence, results showed the complex of penal attitudes to be
dominated by two straightforward perspectives: harsh treatment
(incorporating Deterrence, Incapacitation, Desert, and Moral Balance) and
social constructiveness (incorporating Restorative Justice and
Rehabilitation). Thus, in terms of general, case-independent penal
attitudes, Dutch judges appear not to feel constrained by theoretical
incompatibilities or boundaries. One might expect the general
perspectives of harsh treatment and social constructiveness to be
conflicting. However, these two ‘down to earth’ attitudinal perspectives
were found to be uncorrelated. Given this pragmatic general structure of
penal attitudes, no systematic and consistent approach or direction is
implied regarding the justification and goals of punishment in sentencing
practice. Instead, particular characteristics of offence and offender are
more likely to determine the value attached to specific goals and
justifications of punishment in each and every case. The pragmatic
approach that was revealed can be interpreted as an attitudinal structure
that reflects or facilitates the strong desire in Dutch sentencing practice to
individualise sentences, i.e., to tailor a sentence to the unique aspects
and circumstances of specific cases and individual offenders (cf. Chapter
5). We will return to this point shortly.
A limited number of judges’ background characteristics were available for
a closer look at judges’ penal attitudes (i.e., court of appointment, age,
gender, function within criminal law division of the court, experience in
criminal law division, and previous occupation). Gender and years of
experience in the criminal law division appeared to be the only
characteristics substantially related to individual penal attitudes.
Preferences for ‘harsh treatment’ increase with years of experience while,
at the same time, support for ‘social construction’ drops. Furthermore,
female judges tend to be less favourable towards Incapacitation,
Deterrence, and Desert than their male counterparts.
In order to acquire an overall and well-founded impression regarding the
link between supposed purposes and justifications of punishment and the
actual practice of punishment, it is not sufficient simply to measure and
analyse abstract penal attitudes. A necessary further step is to examine
the goals that judges pursue in specific criminal cases. In short, the two
aspects of interest are abstract notions of punishment on the one hand,
and ‘punishment in action’ on the other. Punishment in action was
examined by means of a scenario study. This involved presenting judges
with four criminal cases (robbery cases) and examining the differences in
preferences for goals of punishment and sentencing decisions. The cases
employed in the scenario study were based on a selection from a large
database of real cases that were heard by criminal courts in the
Netherlands. The four cases that were presented to judges differed from
one another in terms of the incorporation of pointers (i.e., bits of
information) that were expected to evoke preferences for different goals
of punishment. As such a ‘balanced vignette’ (equal pointers for
deterrence, incapacitation, desert, rehabilitation, and reparation), a ‘harsh
treatment vignette’ (dominated by pointers for deterrence, incapacitation,
and desert), a ‘rehabilitation vignette’ (dominated by pointers for
rehabilitation) and a ‘reparation vignette’ (dominated by pointers for
reparation) were created (cf. Chapter 7). The study further aimed to
determine whether or not substantial and consistent patterns of
association exist between goals and sentences and also the relevance of
abstract penal attitudes for pursuing particular goals of punishment in
specific cases. Thus, for selected cases, the study was tailored to explore
the consistency and relevance of sentencing goals in the light of
sentencing decisions rather than to explain sentencing decisions. The
scenario study explicitly focused on judges’ penal attitudes and
preferences for goals of punishment while, through the experimental
nature of the design, controlling as many other factors as possible. A
major strength of such a design, in which the same cases are presented
to all judges in the study is that, given a particular case, any differences
found between judges’ evaluations cannot be attributed to differences in
specific case characteristics.
The scenario study showed that, within the same criminal cases, judges’
preferences for goals of punishment varied substantially. Apparently,
there is no commonly shared vision among Dutch judges in relation to the
goals of punishment that apply in specific cases (at least not with the
goals that we have focused upon). A partial exception was the harsh
treatment vignette, the most serious case in the scenario study, in which
the majority of judges agreed about the relative low level of importance
of rehabilitation and reparation as goals of punishment.
The study also showed that judges’ sentencing decisions varied widely in
the same criminal cases. Moreover, it was shown that different types of
criminal cases with different types of offenders elicit different types of
variation in sentencing. In the most serious robbery case in the study
(i.e., the harsh treatment vignette) the offender and offence
characteristics showed few opportunities for rehabilitation and reparation,
as reflected in judges’ preferences for the goals of punishment. While
there was little variation among judges in choice of principal punishment
(i.e. unconditional prison term), as well as in the choice of special
conditions, variation in sentencing in this case manifested itself
predominantly in terms of severity, that is, length of the prison term. In
the three other vignettes, where opportunities (pointers) for rehabilitation
and/or reparation were present, the variation in sentencing decisions was
more complex. This was due mainly to variations in choice of principal
punishments as well as variations in the use of special conditions with
suspended sentences.
While the judges evaluated the cases from the scenario study individually,
in practice serious cases are tried by panels of three judges (cf. Chapter
5). In deliberations in chambers, such panels have to reach agreement
amongst themselves on the sentence to be passed. To relieve the
caseload of panels of judges in the Netherlands, it has been suggested
that the competence of police judges (unus iudex) should be increased
from six to twelve months imprisonment (cf. Tweede Kamer der Staten
Generaal, 1998; Van der Horst, 1993). The wide variation in sentencing
decisions among individual judges found in this study raises a cautionary
note when considering such a change in the system. Before
implementing such a change, the effect on sentencing disparity of trying
more serious cases by judges sitting alone should be considered very
seriously. The mitigating effects of consensus as a result of the
deliberations by panels of judges should not be undervalued.[i]
The relationship between preferred goals of punishment and sentencing
decisions in the scenario study was examined in order to determine
whether or not the variation in both sets of variables was linked in a
consistent and substantial manner. Even though, with respect to the same
cases, judges may differ amongst themselves, both in terms of their
preferred goals of punishment as well as in their sentencing decisions, it
is still possible for goals and sentences to be related in a consistent and
meaningful way. Overall, results show that preferences for goals of
punishment were not very relevant for choosing a particular sanction, nor
were sentencing decisions consistently rationalised by goals of
punishment. As might be expected, however, the harsh treatment
vignette constituted an exception. In this case at best 18 percent of the
variance in sentencing could be accounted for by variance in goal
preferences. The two sets of variables were clearly associated along the
lines of harsh treatment versus social constructiveness.
Regarding the relationship between personal, case-independent, penal
attitudes and preferred goals at sentencing, penal attitudes were
expected to be of relevance only when pointers for the range of goals of
punishment are equally present in a particular case. In the balanced
vignette (i.e. balanced in terms of pointers for the range of goals), penal
attitudes were expected to act as tiebreakers, whereas their role was
expected to be irrelevant in the other vignettes. Results of the study show
judges’ penal attitudes not to be relevant for preferred goals at
sentencing in any of the four cases in the scenario study.
Thus, the current study went looking for a clear and consistent link
between justifications and goals of punishment derived from moral legal
theory on the one hand, and the practice of punishment on the other.
Such a link could not be established. The argument was put forward that
if there is a consistent legitimising moral framework underlying the
current practice of punishment, this should somehow be reflected by that
practice. This argument has been explored from several points of view.
The overall structure in general penal attitudes reveals a pragmatic
inclination that is insufficient to serve as a consistent and legitimising
(moral) framework. In specific criminal cases there was no agreement on
the goals of punishment to be aimed for. Sentences in the same criminal
cases differed widely and no substantial and consistent patterns of
association between goals and sentences were found. Perhaps there are
other mechanisms or processes, apart from those derived from moral
legal perspectives that may provide sufficient justification and guidance
for the practice of punishment. From the perspective adopted in this
study, however, it seems safe to conclude that there is no consistent
legitimising and guiding moral framework underlying the current practice
of punishment.
While individualisation is valued in Dutch sentencing practice and judges
may aim to individualise their sentences as much as possible, the
scenario study has shown that individualisation can, depending on the
sentencing judge, imply a wide variety of sentences in terms of type,
severity, and special conditions for exactly the same criminal case. In the
light of these findings, individualisation has, in fact, two components: a
judgecomponent and a case characteristics-component.[ii] While
individualisation in sentencing may be a highly valued principle in the
Dutch practice of punishment, it obviously has a number of potential
drawbacks. The wish to individualise sentences may, for example, be in
direct conflict with the principle of equality in sentencing. Concerns about
equality in sentencing have increased in the Netherlands over the last
decade and have led to various initiatives to enhance consistency in
sentencing. Initiatives for attaining a greater level of consistency in
sentencing include structured deliberations between chairpersons of the
criminal law divisions of the courts, attempts to formulate ‘band widths’ or
‘starting points’ for sentencing in certain types of cases, and the
development of and experimentation with computer-supported decision
systems and computerised databases (e.g., Oskamp, 1998). Without a
commonly shared underlying moral framework or vision of punishment,
the (strict) application of such essentially inanimate mechanisms may
eventually lead to a bureaucratic equality in sentencing (cf. Kelk, 1992;
Kelk & Silvis, 1992) in which the moral justification and goals of
punishment are pushed still further into obscurity.[iii]
Moreover, and perhaps paradoxically, in the absence of a commonly
shared vision on the justification and goals of punishment, it remains
questionable whether or not such mechanisms will ever be accepted or
consistently applied by sentencing judges (De Keijser, 1999). Perhaps
cases similar to the harsh treatment vignette (i.e. few opportunities for
rehabilitation/ reparation), where there was some level of consensus
about the goals of punishment and appropriate type of sentence, will be
the most amenable to the use of such mechanisms.
The present study constitutes an appreciable simplification of the complex
and dynamic process of sentencing in real life court cases. By choosing
such an approach, however, the extreme dependence of judges on
external influences and mechanisms has been shown. A commonly shared
vision underlying criminal justice on fundamental moral principles and
their practical implications may constitute a first line of defence against
extra-judicial influences, such as short-term criminal politics (e.g., passed
on through the public prosecutor), and media hypes that may be
considered undesirable. An intricate and at heart morally problematic
institution such as legal punishment, that cannot fall back on and does
not reflect a coherent underlying vision, will, in the long run, forfeit its
credibility. On the part of policymakers, the necessity of normative and
theoretical reflection already seems to become irrelevant or is even
viewed as an obstacle (cf. ’t Hart, 1997). The essence of the practice of
punishment is being reduced to or reformed into technocratic
rationalisations primarily based on considerations for manageability,
control (Van Swaaningen, 1999; Kelk, 1994; Feeley & Simon, 1992), and
instrumentality (Foqué & ‘t Hart, 1990; Schuyt, 1985). One may
legitimately wonder whether actions within such a practice can or should,
in the long run, still be called ‘punishment’.
The fact that we have not been able to establish a clear and consistent
link between justifications and goals of punishment derived from moral
theories and the practice of sentencing, may be attributed to a number of
causes. If one accepts the basic premise of this study, namely that
punishment is morally problematic and therefore needs a consistent and
practically relevant moral justification, the present results should at least
lead one to reconsider and discuss the justification and goals of
punishment and the way in which they relate to our contemporary
practice. One argument may be that the theories of utilitarianism,
retributivism, and restorative justice are in themselves plainly too
awkward for practical purposes, i.e., to provide a clear and practically
relevant legitimising and guiding framework for the contemporary practice
of sentencing. Therefore, the gap between these legitimising theories of
punishment and the actual practice cannot be bridged. Theoretical
compromises, i.e. hybrid theories, will not effectively solve the problem.
Hybrid theories, it has been argued, can very well disguise eclecticism in
sentencing practice (cf. Chapter 2). A second argument takes the opposite
point of view, i.e., that the practice of sentencing, conceived as an
essentially morally problematic practice, is defective: it is a practice in
which a coherent vision on the moral foundations of punishment and the
goals at sentencing is absent. While individual judges may have their own
idiosyncratic models of the relationship between goals of punishment and
specific sanctions, such a relationship is hard to discern at the aggregate
level. These arguments are not mutually exclusive. Moreover, either way,
a defective link between moral theory and the practice of legal
punishment, as observed in this study, remains. This suggests, at least,
two general and simultaneous courses of action.
First, the necessity of serious and fundamental theoretical reflection is
evident. In this respect, it is striking that in the Netherlands the
theoretical debate appears to have died out. To date, relatively few
lawyers and scholars appear to attach great value to moral theorising. An
important course of action would therefore be to revive the theoretical
debate, not just for the sake of theorising, but rather for the sake of
repairing the moral foundations of legal punishment with clear
implications for sentencing practice.
A second and related course of action would be to put serious effort into
reaching a consensus and to make the link between (theoretically
derived) goals of punishment and actual sentences explicit. Such
deliberations should not simply include principal punishments, but the
whole array of sentencing options that are currently available to judges.
This requires serious reflection and, more importantly, would imply
making certain commitments that may not be popular from a political
perspective. While mixing cocktails consisting of a multitude of frequently
conflicting goals may be smart from a (short-term) political point of view,
it renders sentencing practice impalpable and difficult to legitimise. Rather
than conceiving of such processes as attempts to limit judges’ discretion
in sentencing, they may eventually help to avoid more serious constraints
on sentencing discretion through bureaucratic mechanisms. Currently, in
the Netherlands, the unduly complex and fragmented nature of our
sanctions system is being scrutinized. The Department of Justice has
recently suggested a number of ways to streamline the system (cf.
Department of Justice, 2000; see also Justitiële Verkenningen, 2000).
Incorporating explicit and well-considered notions of the link between
punishment and purpose in such a process of streamlining is an
opportunity for real improvement that should not be missed (cf. Van
Kalmthout, 2000; see also De Jong, 2000).
These courses of action should constitute the first steps towards a
sentencing practice that is less impalpable and more coherent.
Simultaneously they may stimulate a search for other methods of
promoting disciplined conduct and social control (cf. Garland, 1990). As
such, they may fuel a process of decremental change (Braithwaite &
Pettit, 1990) in the reach and workings of the current criminal justice
system. Obviously the debates should not be limited to the judiciary but
must also be extended to the legislator and the government.[iv] One of
the great challenges is to establish common ground for such debates.
After all, political and philosophical reflection can often be difficult to
reconcile (’t Hart & Foqué, 1997). The readiness of criminal justice
officials, government, and the legislature to address these issues will
depend on an acknowledgement that the current state of affairs is
unsatisfactory. It will also depend on the belief in the potential to improve
the current state of affairs and, subsequently, on the actual willingness to
act on these beliefs (cf. Likert & Lippitt, 1966; see also Denkers, 1975).
This study may contribute to the acknowledgement of this fundamental
moral problem in contemporary criminal justice.
Powerful tools that can contribute to the process of improving the current
state of affairs are readily at hand. Structured deliberations between
chairpersons of the criminal law divisions of the courts, a council for the
administration of justice, attempts to establish ‘band widths’ or ‘starting
points’ for sentencing in certain types of cases, and the development
of and experimentation with computer-supported decision systems and
computerised databases have been focussed on attaining greater levels of
consistency in sentencing. Consistency in sentencing does not necessarily
solve the moral problems at stake. Moreover, without a commonly shared
vision of the justification and goals of punishment and the way they
should relate to actual sentences, the effectiveness of such initiatives is
questionable. However, these initiatives are the tools par excellence for
making differences explicit (in terms of goals and motivations as well as
in terms of sentences) and for forming a body of knowledge on which a
common vision can start to take shape.
 BIBLIOGRAPHY

BOOKS

1.HONOR AND Revenge : A theory of Punishment by

Kaufman Whitley, 2012)
2.An expressive theory of Punishment by Bill Wringe
3.Punishment by Mark Tunick

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