The Various Theories of Punishment in Criminal Law

1) Elaborate the various theories of punishment in Criminal Law (10m)

There are four theories of punishments, namely, retribution theory, deterrent theory, and reformation theory. Firstly, a kid who falls down and kicks the floor inadvertently. Generally, it is believed to be a firm of taking revenge and would not serve only penal purpose. Deterrent theory by punishing the offenders deters the wrongdoer specially and deters the general public also by punishing him and refrain them from committing an act.

If a society has laws, it must also have punishments for those who break the laws. In the UK, when someone is found guilty of a crime, a judge or magistrate makes a judgment on what their punishment should be. The main aim of punishment is to try to make sense that everyone obeys the law. However, there are different theories about what is the most effective form of punishment and what it should do.

First and foremost, the theory of punishment is retribution theory. Retribution is probably the oldest and most ancient justification for punishment, according to which a wrong is made right by an offender’s receiving his just deserts. Retribution is the theory that criminals should pay for their crime. Most of the people think this should be the main reason for punishment because it makes criminals suffer for what they have done wrong.

Criminals make their victims suffer, whenever the criminals should also suffer of the code of Hammurabi (An eye for an eye and a tooth for a tooth), it has been urged by leaders and accepted by the general public that the criminal deserves to suffer. Among the ancient Jews even animals which killed human being were regarded as contaminated and were got rid for the good from the community. Many authorities have attempted to base the forms of human punishment on instinctive reactions, which might variously be called wrath, anger, resentment or revenge.

Retribution theory intends that a man deserves punishment because he has acted wrongfully. What retribution has insisted upon is that no man can be punished unless he has broken the laws. To be more precise, retribution considers that the offender performed an action of a certain culpability that the penalty will give satisfaction equivalent to the grievance caused by his action. In addition, that similar ones have been and will be imposed on similar offenders that he was responsible for his action and performed it with knowledge of possible consequences according to a penalty system and that unlike non-offenders, has gained satisfaction on the commission of an offence.

As it stands it is worth consideration as a sufficient argument for punishing a man. In case of Loo Choon Fatt [1976] stated that retribution as an object in sentencing now plays little part in public interest in sentencing, same goes to the case of Rajandran [1985], certain crimes must be making clear by society through courts that through severity of the punishment, the crime shall not repeat itself again.

Secondly, the deterrence punishment is that the act of punishment will deter people from committing further crime. Deterrence punishment divided into two kinds which are General deterrence and Individual deterrence. General deterrence is the knowledge that punishment will follow crime deters people from committing crimes, thus reducing future violations of rights as well as the unhappiness and insecurity they would commit because of the likely punishment ensued.

In case of general deterrence, the offender who entitled to the punishment will served as an example as a threats to others which may help to deter others the seriousness of committing the offences with a properly developed Penal Code, the advantages to be gained from criminal activity would be outweighed by the harms of punishment, even when those harms were discounted by the probability of avoiding detention.

Accordingly, the greater the temptation to commit a particular crime and the smaller the chance of detention, the more severe the penalty should be. Otherwise, in case of individual deterrence, the actual imposition of punishment creates because of unpleasant experience of the punishment. Adults are more able than small children to draw conclusions from the punishment of others, but having a harm befall oneself is almost always a sharper lesson than seeing the same harm occur to others. However, to deter an offender from repeating his actions, a penalty should be severe enough to outweigh in his mind the benefits of the crime. Whenever, for the utilitarian, more severe punishment of repeat offenders is warranted partly because the first penalty has shown itself ineffective.

Thirdly, another theory of punishment is incapacitation. The central idea of incapacitation is the society must be protected from dangerous person disposition from acting upon their destructive tendencies. There have many ways of punishment can be applied to incapacitate the criminal offenders, for example, imprisonment temporarily puts the convicted criminal act of general circulation and the death penalty does so permanently under S.295 Criminal Procedure Code. It would also be the case if the offender, when released from prison had become dangerous then he was before.

Hence, the crimes he commits after release are more numerous or more serious than these which were prevented while he was imprisoned. Next, the theory of punishment which is applicable in criminal law is Reformation. The objective of reformation is to reform the criminal so that his wish to commit crimes will be lessened and the offender can assume living with the society and plays a useful role. In case of Kenneth John Ball v R [1951], it was stated that criminal law is publicly enforced not only with the purpose of punishing crime but in the hope of preventing the repeatedly crime. Besides that, reformative punishment is favored in the public interest.

Reformative sentencing may suitable for young offenders, persons with no previous criminal convictions and for those who have committed trivial offences which exposed in Teo Siew Peng [1985]. However, reformative is usually conceived as involving more positive steps to make offenders less antisocial by altering their basic character, improving their skills, or teaching them how to control their crime-producing urges such as their tendency to abuse drugs or alcohol, or to commit sex crimes. These may indirectly help enhance self-respect.

In a rational system of Penal Law, a close connection will exist between accepted theories of punishment and both the boundaries of the substantive criminal law and the procedures by which criminal guilty is determined. The justifications obviously teach on sentencing policies and the sorts of activities that shall be made criminalization decisions, but they are much more pervasive.

2) Apart from the existing Four (4) theories of punishment, discuss on the availability of other types of punishment as implemented in other judgments, support your answers with relevant information, statues, and cases (if any) (10m)

Although punishment has been a crucial feature of every developed legal system, widespread disagreement exists over the moral principles that can justify its imposition.

One fundamental question is why the social institution of punishment is warranted. A second question concerns the necessary conditions for criminal liability and punishment in particular cases. A third relates to the form and severity of punishment that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices. However, there have a lot of punishment theories to be imposed on the criminal offenders in order to design the harmful consequences that most people would wish to avoid.

Firstly, the theory of punishment is Rehabilitation. Rehabilitation is to restore to useful life, as through therapy and education for the offenders. The assumption of rehabilitation is that people are not permanently criminal and that it is possible to restore a criminal to a useful life, to a life in which they can bring contribution to themselves and to society. A goal of rehabilitation is to prevent habitual offending, also known as criminal recidivism.

Rather than punishing the harm out of a criminal, rehabilitation would seek, by means of education or therapy, to bring a criminal into a more normal state of mind, or into an attitude which play vital role in public interest, rather than be harmful to society. This theory of punishment is based on the notion that punishment is to be inflicted on an offender so as to reform the criminal offenders, or rehabilitate them so as to make their re-integration into society easier.

The form of rehabilitation punishments are community service, probation orders, and any form of punishment which entails any form of guidance and aftercare towards the offender. For example, in case of Alejandra Tapia [2011], it was stated that the right of the judge to increase a criminal offender’s sentence so the offender could participate in a rehabilitation program in prison should reconsider the nature and purpose of incarceration.

Moreover, this theory is founded on the belief that one cannot inflict a severe punishment of imprisonment and expect the offender to be reformed and to be able to re-integrate into society upon offender’s release. Indeed, the United States Code states that sentencing judges shall make imprisonment decisions "recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation" Secondly, restoration punishment is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or applying the punishment upon the offender.

Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, to repair the harm they've done such as apologizing, returning stolen money, or community service. Restoration punishment involves both victim and offender and focuses on their personal needs.

Apart from that, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state. Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability. In case of Braithwaite (2004), it was explained that restorative punishment is a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm.

With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have afflicted the harm must be central to the process. Besides that, restoration punishment practices within its facilities and programs since 1992 under Colorado Revised Statues 2008 to deal with the criminal offenders.

Thirdly, the other alternative theory of punishment is denunciation. Denunciation Punishment can be explained by positive prevention theory to use the criminal justice system to deterrence people what are the social norms for what is correct, and acts as reinforcement. Punishment can serve as a means for society to publicly express denunciation of an action as being criminal. Besides educating people regarding what is not acceptable behavior, it serves the dual function of preventing vigilante justice by acknowledging public anger, while concurrently deterring future criminal activity by stigmatizing the offender. This is sometimes called the "Expressive Theory" of denunciation.

The pillory was a method for carrying out public denunciation. Also, denunciation punishment is a principle of sentencing in criminal law that the sentence sends a clear message to the general public that the offence is serious and the punishment just which applied in the case of R v Innes [2008]. Lastly, the punishment in the criminal justice system is back-to-back life sentence. Back-to-back life sentences are two or more consecutive life sentences given to a felon. This penalty is typically used to prevent the felon from ever getting released from prison.

This is a common punishment for a double murder in the United States; this is effective because the defendant may be awarded parole after 25 years when he or she is eligible, and then must serve an additional 25 years in prison to be eligible for parole again. It also serves as a type of insurance that the criminal offender will have to serve the maximum length of at least one life sentence if, for some reason, one of the murder convictions is overturned on appeal.

The objective of that kind of punishment applied in the criminal justice system is to cease the unpleasant consequences of punishment are usually preceded by a judgment of condemnation; the subject of punishment is explicitly blamed for committing a wrong of the accused. For example, the case of Jack Daniel McCullough [1957], the murder was sentenced to life prison for killing and kidnapped a 7-years-old little girl.

In a nutshell, upon all of the theories of punishments discussed, it is clearly stated that the society must be deterrence by particular punishment in order to shape up a harmony community within a social environment. In contrast, Punishment must thus be proportionate, balancing the appropriate punishment and the severity of the crime. Hence, the criminal punishment justice could be form a public policy, based in violation of known laws, with consistent enforceable