Criminology, Penology& Victimology Project: Theories & Types Of Punishment

Theories & Types of punishment

Criminology, Penology& Victimology Project Bachelor of Law (B.A Ll.B)

Under the Supervision of Rasheed CA Faculty of Law

Submitted by Prof. Shivam Dalmia Semester V (Third year) Sec-B

FACULTY OF LAW JAMIA MILLIA ISLAMIA, NEW DELHI-25 [Type text]

Theories & Types of Punishment

ACKNOWLEDGEMENT

I convey my hearty affection to all those people who helped and supported me, for completion of my project.

My deepest thanks to our subject Professor (Prof.Rasheed CA) for guiding and correcting various topics of mine with attention and care. He has taken pain to go through the project and make necessary correction as and when needed

Shivam Dalmia

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Theories & Types of Punishment

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Theories & Types of Punishment

Table of Contents ACKNOWLEDGEMENT................................................................................................................................2 In philosophy........................................................................................................................................5 In psychology....................................................................................................................................5 A.

4. Scope of application:................................................................................................................6

A.

5. Possible reasons for punishment:............................................................................................6 Deterrence (prevention)...................................................................................................................6 Rehabilitation...................................................................................................................................6 Incapacitation and societal protection............................................................................................6 Retribution.......................................................................................................................................7 Restoration.......................................................................................................................................7 Education and denunciation............................................................................................................7

A.

6. General form of Punishments:...................................................................................................7

B. Retribution-theory of punishment.........................................................................................................8 B.

3. Critique of Retributivism:...................................................................................................9

C.3. Critique of Utilitarianism:.....................................................................................................11 C.4.ii. Cesare Beccaria......................................................................................................................12 C.4.iii. Richard Posner.......................................................................................................................12 C.5. Relation of deterrence theory with utilitarian theory:........................................................13 Deterrence also a part of utility theory.........................................................................................13 Description..........................................................................................................................................14 E.2. Examples:......................................................................................................................................15 F. 2. Practical difficulties:.....................................................................................................................16 Psychopathy and recidivism.............................................................................................................17 H.2.ii. Humanising of criminal punishments:....................................................................................19 H.2.iii.Prison reform:........................................................................................................................19 H.2.iv. Abolition of torture:..............................................................................................................19 H.2.vii. Prevention of cruelty to animals:.........................................................................................20 Formation of the Red Cross and international humanitarian action................................................20 Conclusion...............................................................................................................................................21

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Theories & Types of Punishment

Theories & Types of Punishment A. General introduction: Penology Past behaviour is the best predictor of future behaviour. From this perspective, it is reasonable to attempt to prevent crime by preventing known offenders from continuing their criminal behaviour. This project tries to focuses on the options for dealing with actual perpetrators once they are identified, so that crime in the community can be reduced.1

A. 1. Penology meaning: Penology originates from the Latin word poena, which means "punishment" and the suffix -logy, means "study of". Penology is a section of criminology that deals with the philosophy and practice of various societies in their attempts to repress criminal activities, and satisfy public opinion via an appropriate treatment regime for persons convicted of criminal offenses. The Oxford English Dictionary defines penology as "the study of the punishment of crime and prison management", and in this sense it is equivalent with corrections. Penology is concerned with the effectiveness of those social processes devised and adopted for the prevention of crime, via the repression or inhibition of criminal intent via the fear of punishment. The study of penology therefore deals with the treatment of prisoners and the subsequent rehabilitation of convicted criminals. It also encompasses aspects of probation (rehabilitation of offenders in the community) as well as penitentiary science relating to the secure detention and retraining of offenders committed to secure institutions. Penology concerns many topics and theories, including those concerning prisons (Prison reform, Prisoner abuse, Prisoners' rights, and Recidivism), as well as theories of the purposes of punishment (such as Deterrence, Rehabilitation, Retribution, and Utilitarianism). Contemporary penology concerns itself mainly with criminal rehabilitation and prison management. The word seldom applies to theories and practices of punishment in less formal environments such as parenting, school and workplace correctional measures. Historical theories of punishment were based on the notion that fearful consequences would discourage potential offenders.2 1

Doris Layton Mac Kenzie, CRIMINAL JUSTICE AND CRIME PREVENTION Chapter 9, available at: https://www.ncjrs.gov/works/chapter9.html (Visited on March 24, 2013). 2 Penology, available at: http://en.wikipedia.org/wiki/Penology (Last Modified March 23, 2013 at 05:21).

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Theories & Types of Punishment A. 2. Sociology of punishment: The sociology of punishment seeks to understand why and how we punish; the general justifying aim of punishment and the principle of distribution. Punishment involves the intentional infliction of pain and/or the deprivation of rights and liberties. Sociologists of punishment usually examine state-sanctioned acts in relation to law-breaking; why, for instance, citizens give consent to the legitimating of acts of violence. Two of the most common political and ethical motivations for formal punishment are utilitarianism and retributivism. Both these concepts have been articulated by law-makers and law-enforcers, but may be seen as descriptive rather than explanative. Sociologists note that although attempts of justification are made in terms of these principles, this does not fully explain why violent punitive acts occur. Social psychology and symbolic inter-actionism often inform theory and method in this area.3

A. 3. Definitions: In philosophy Various philosophers have presented definitions of punishment. Conditions commonly considered necessary to properly describe an action as punishment are that 1. 2. 3. 4.

it be imposed by an authority, it involve some loss to the supposed offender, it be in response to an offence, and the person (or animal) upon whom the loss is imposed be deemed at least somewhat responsible for the offence.

In psychology Introduced by B.F. Skinner, punishment has a more restrictive and technical definition. Along with reinforcement it belongs under the Operant Conditioning category. Operant Conditioning refers to learning with either punishment or reinforcement. It is also referred to as responsestimulus conditioning. In psychology, punishment is the reduction of behaviour via application of an adverse stimulus ("positive punishment") or removal of a pleasant stimulus ("negative punishment"). Extra chores or spanking are examples of positive punishment, while making an offending student lose recess or play privileges are examples of negative punishment. The definition requires that punishment is only determined after the fact by the reduction in behaviour; if the offending behaviour of the subject does not decrease then it is not considered punishment. There is some conflation of punishment and aversive, though an aversive that does not decrease behaviour is not considered punishment in psychology. In socio-biology Punishment is sometimes called retaliatory or moralistic aggression; it has been observed in all species of social animals, leading evolutionary biologists to conclude that it is an evolutionarily stable strategy, selected because it favours cooperative behaviour.4 3

Sociology of punishment, available at: http://en.wikipedia.org/wiki/Sociology_of_punishment (Last Modified May 14, 2012 at 20:37). 4 Punishment, available at: http://en.wikipedia.org/wiki/Punishment (Last Modified March 22, 2013 at 16:31).

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Theories & Types of Punishment

A. 4. Scope of application: Punishments are applied for various purposes, most generally, to encourage and enforce proper behaviour as defined by society or family. Criminals are punished judicially, by fines, corporal punishment or custodial sentences such as prison; detainees risk further punishments for breaches of internal rules. Children, pupils and other trainees may be punished by their educators or instructors (mainly parents, guardians, or teachers, tutors and coaches).5

A. 5. Possible reasons for punishment: There are many possible reasons that might be given to justify or explain why someone ought to be punished; here follows a broad outline of typical, possibly conflicting, and justifications: Deterrence (prevention) One reason given to justify punishment is that it is a measure to prevent people from committing an offence - deterring previous offenders from re-offending, and preventing those who may be contemplating an offence they have not committed from actually committing it. This punishment is intended to be sufficient that people would choose not to commit the crime rather than experience the punishment. The aim is to deter everyone in the community from committing offences. Deterrence or punishment that is so repugnant that neither the punished offender (specific deterrence) nor others (general deterrence) will commit the crime in the future. Rehabilitation Some punishment includes work to reform and rehabilitate the wrongdoer so that they will not commit the offence again. This is distinguished from deterrence, in that the goal here is to change the offender's attitude to what they have done, and make them come to see that their behaviour was wrong. Rehabilitation or treatment directed toward changing the offender and thereby preventing future criminal behaviour of the treated individual. Incapacitation and societal protection Incapacitation as a justification of punishment refers to the offender’s ability to commit further offences being removed. Imprisonment separates offenders from the community, removing or reducing their ability to carry out certain crimes. The death penalty does this in a permanent (and irrevocable) way. In some societies, people who stole have been punished by having their hands amputated. 5

Supra note 4.

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Theories & Types of Punishment Incapacitation or depriving the offender of the capacity to commit crimes usually through him is done by detention in prison or capital punishment.

Retribution Criminal activities typically give a benefit to the offender and a loss to the victim. Punishment has been justified as a measure of retributive justice, in which the goal is to try to rebalance any unjust advantage gained by ensuring that the offender also suffers a loss. Sometimes viewed as a way of "getting even" with a wrongdoer - the suffering of the wrongdoer is seen as a desired goal in itself, even if it has no restorative benefits for the victim. One reason societies have administered punishments is to diminish the perceived need for retaliatory "street justice", blood feud and vigilantism. Restoration For minor offenses, punishment may take the form of the offender "righting the wrong", or restitution. Community service or compensation orders are examples of this sort of penalty. Education and denunciation Punishment can be explained by positive prevention theory to use the criminal justice system to teach 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 behaviour, 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.6

A. 6. General form of Punishments:

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

The general forms of punishment are:

           

Flogging Mutilation Branding Stoning Pillory Fine / Penalty Forfeiture of Property Security Bond Banishment Penal Servitude Simple Imprisonment Solitary confinement

Supra note 5.

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Theories & Types of Punishment  

Imprisonment for Life Death or Capital Punishment7

B. Retribution-theory of punishment B. 1. The concept of retributive justice with theory of punishment of retribution: Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best response to crime. When an offender breaks the law, s/he thereby forfeits or suspends her/his right to something of equal value, and justice requires that this forfeit be enacted. This is sometimes taken to mean that justice involves seeking vengeance on behalf of the aggrieved party, or society as a whole.8 Retributivism covers all theories that justify punishment because the offender deserves it. This is interpreted in two ways, either:  

a person must be punished because they deserve it (deserving is a sufficient reason for punishment), or a person must not be punished unless they deserve it (deserving is a necessary but not sufficient condition for punishment).

Retributive theories usually put forward that deserving is a sufficient reason for punishment.9 There are four sorts of retributive accounts, as: (1) revenge (associated by some with the lex talionis ); (2) condemnation; (3) deontological theories; and (4) just deserts.

B. 2. The main strands of retributivism are:   

 

Intrinsic Retribution: Offender deserves punishment because there is intrinsic good in the guilty suffering. Lex Talionis: To restore the balance between offender and victim. Unfair Advantage Principle: To restore the balance by the imposition of extra burdens on those who have usurped more than their fair share of benefits. (Note the focus of Lex Talionis is on what others have lost, the focus of the unfair advantage principle is on what the offender gained.) Hegelian Retribution: Punishment annuls the wrong done. Liability: The offender had knowledge that he would be punished if he committed the acts, and he therefore deserves punishment if he does it.

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Kinds of Punishments, available at: http://www.lawnotes.in/Kinds_of_Punishments (Visited March 24, 2013). Retributive justice, available at: http://en.wikipedia.org/wiki/Retributive_justice (Last Modified March 12, 2013 at 05:19). 9 Sociology of punishment, available at: http://en.wikipedia.org/wiki/Sociology_of_punishment, (Last Modified May 14, 2012 at 20:37). 8

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Theories & Types of Punishment  

Social Contract Theory: We make a contract to give up certain rights in order for other rights to be protected, when we break that contract we deserve to have our rights taken away. Grievance Theory: The offender has caused a grievance for the victim, and the punishment of the offender will satisfy the victim, and make up for that grievance (although proposed as a form of retribution, it is questionable as to whether it really is retributivist in principle).

The nature of desert means that the offender must be blameworthy and that an offender deserves punishment simply because he has offended, and so his punishment must relate to his wrongdoing. It can therefore be said to be backward-looking. The theory of retributivism does propose a number of purposes of punishment: to restore the balance (whether according to Lex Talionis or the Unfair Advantage Principle), to openly and emphatically denounce crime, or to provide satisfaction. The principles of distribution can be derived from these purposes. There are 3 main methods for deciding on punishment.   

The first is in accordance with Lex Talionis; that punishment should be equal or equivalent to the crime. The second is the culpability principle; that punishment should be in proportion to the harmfulness and blameworthiness of an offender’s actions. The third is in accordance with the grievance principle; that punishment should give satisfaction equal to the grievances caused.

B. 3. Critique of Retributivism: The above explanations for deciding on punishment raise a few issues:  



The idea of equal or equivalent punishment, however, proves to be impractical. How can the equivalent of sexual assault be found in any current punishment? To decide on punishment in terms of satisfaction in accordance with grievances caused is also questionable. Honderich [1989:34] says that punishment is not wholly justified and liberalized in terms of the offence, but provides “the contention that a man’s punishment must provide satisfactions”. However if punishment is not wholly dependent on the offence, but is in part to do with satisfaction, then it is in part, consequentiality (and therefore not retributive). The culpability principle is often used in deciding the punishment of offenders. However there are large numbers of punishments handed down which do not obey this principle. Particularly, this is the case where the harmfulness and blameworthiness of offender’s actions are not proportionate to the punishment. For example, in Australia the punishment for speeding up to 30 km over the legal speed limit is 3 demerit points. The punishment for a passenger of your vehicle not wearing their seatbelt is 3 demerit points. According to the retributivist explanation of punishment, two offences that have the same punishment should be fairly similar in terms of the harmfulness and blameworthiness. However in this example it can be seen that this is not the case.

Therefore it can be seen that retributivist theories are not adequate to explain why and how we punish. Page 10

Theories & Types of Punishment Retributivism as a justification for punishment can be seen to fall under the category of a Theory of the Right rather than a Theory of the Good.10

C. Deterrence/Prevention- theory of punishment C. 1. Meaning: Utilitarian or UtilitarianismUtilitarianism, as the name suggests and tells, covers all theories that justify the evil of punishment only when that punishment has some utility. It is therefore forward looking, and consequentiality in nature [Baker, 1971:69], as it holds the belief that, ultimately, the only morally significant features of an act are the good and bad consequences produced by it. The word utility has been used to justify punishment in two different ways in utilitarian writing:  

Use: that punishment is only justified when it has some use – that is, preventing further crime [Lessnoff, 1971:141]. Value: that punishment is only justified when it is most conducive to the welfare of society [Ten, 1987:3], that is, the value society gains from the punishment are more than the disadvantages incurred by the offender.

However most utilitarian’s agree that not only must punishment have both use and value, but also that there be no other solution that would deter as effectively with less distress [Honderich 1989:59]. While utilitarianists may slightly disagree on why the evil of punishment can be justified, authors agree that the purpose of punishment is to reduce crime. This purpose directly relates to the principle of distribution of utilitarianism. Most utilitarianists agree that there are three ways to reduce crime: incapacitation, deterrence and reform.

C. 2. Types of prevention: There are 2 main types of prevention: specific and general prevention. Specific prevention is aimed at the offender him/herself whilst general prevention is aimed at the public in general. C.2.i. Specific Prevention: Wright [1982] in his discussion of Utilitarianism describes three main goals of individual prevention.   

“Firstly”, he begins “imprisonment deters [the] individual from committing crime” [p. 26]. So one reason for sending the offender to prison for a crime is to make him less likely to commit further crimes through fear of more imprisonment. “Secondly”, he continues, “prison is...to protect the public from certain offenders” [p. 27]. So his second reason is we send offenders to prison to render them incapable of committing crimes. Thirdly, he concludes, “prisons [are]...to rehabilitate”. So we send offenders to prison to rehabilitate them, so that they no longer need to commit crimes. There is some debate

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Sociology of punishment, available at: http://en.wikipedia.org/wiki/Sociology_of_punishment (Last Modified May 14, 2012 at 20:37).

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Theories & Types of Punishment about this third point, with some authors following the above example, focusing on rehabilitation as the third goal [Braithwaite & Petit, 1990:4; Bean, 1981:44; Walker, 1994:212], others quoting reform [Bentham in Honderich, 1989:51; Mabbot in Acton, 1969:17], and still others mistakenly using the two words interchangeably. C.2.ii. General Prevention: General prevention uses the punishment of the offender to prevent others from committing crimes. It has been argued that sending an offender to prison has three effects.   

Firstly through fear of suffering a similar fate to the offender, the general public is deterred from committing similar crimes [Lessnoff, 1971:141]. Secondly, by sending on offender to prison, a proclamation is issued specifying that it is morally wrong to disobey the law. Lastly, “with fear or moral influence as the intermediate link...unconscious inhibitions against crime...establish a condition of habitual lawfulness” [Andenaes, 1974:8].

A number of issues are associated with the utilitarian justification of punishment:  

Firstly, utilitarianism allows for innocents to be punished. Moberly [1968:44] states that utilitarianism can account for “when no direct partaker of the crime can be apprehended, other people may be punished in his stead”. Secondly, the utilitarian justification of punishment as an investment does not uphold the claim of punishment to be “something more and other” [Moberly, 1968:70] than burdens such as quarantine and war imposed by the state. Moberly argues that it cannot, as this claim is only upheld when an essential attribute of punishment is that it relates to transgression of a law, and therefore the crime committed.

Utilitarianism as a justification for punishment can be seen to fall under the category of a Theory of the Good rather than a Theory of the Right.

C.3. Critique of Utilitarianism: If utilitarian justifications of punishment were sound, then one would expect to find certain conditions met by those who are punished. Looking specifically at imprisonment, one would conclude that the people in our prisons are dangerous or have a long criminal record (and are therefore in need of capacitation), that the amount of recidivism is low (as offenders will have been deterred from committing future crimes) and that there will be programs for rehabilitation and opportunities for reform in place.11 The main goal of a utilitarian is to prevent, or deter future crimes, while maximizing the social benefit, that is, to minimize the harms to society. Also, they want to create and maintain a system of law and order. They argue, that when someone is punished, this in itself is a deterrent to crime, as the offender, who is punished will distance from crime as she is under the threat to be punished again, if she repeats a crime. This is called the individual deterrent effect. The emphasis is on preventing crimes from occurring in the future, and the benefit of society is the main purpose in the way of thinking, as society is now safe.12 11

Sociology of punishment, available at: http://en.wikipedia.org/wiki/Sociology_of_punishment (Last Modified May 14, 2012 at 20:37). 12 Utilitarian vs. Retributive, available at: http://www.prongs.org/philosophy/utilitarian.pdf (Visited March 24, 2013).

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Theories & Types of Punishment C. 4. Exponents of the utilitarian theory of punishment: C.4.i. Jeremy Bentham The classic exponent of utilitarianism is Jeremy Bentham, and one of his greatest works lays out a utilitarian justification of legal punishment. For Bentham, the principle of utility is the ground of all moral actions. It is a natural principle that lacks any further ground, and it is not to be questioned. C.4.ii. Cesare Beccaria We have seen a tension in Bentham's account between his utilitarianism and his very tentative and implicit acknowledgment of the demands of right or justice. This tension also surfaces in the work of another classic theorist of punishment, Cesare Beccaria. Beccaria is not properly called a utilitarian, for he does not appeal systematically to some principle of utility, as does Bentham. But in his famous work An Essay on Crimes and Punishments, Beccaria justifies legal punishment, and also its limits, by appealing to the idea of social utility. Beccaria combines elements of both rights-based and utilitarian theories. Like Hobbes, Beccaria argues that the natural condition of man is a continual state of war, and to escape it we sacrifice part of our liberty in order to enjoy the rest in peace and security; this reservoir of liberty has to be defended, and punishment is the means. Punishment is necessary to restrain passions and preserve our lives. Armed with this principle that we punish to preserve the safety of society, Beccaria goes on to ask of all occasions on which we consider whether to punish, whether punishing is reay useful or necessary for the safety or good order of society. As for Bentham, for Beccaria punishment is an evil, and we are to use it only when the principle of social utility dictates that we should: The degree of the punishment, and the consequence of a crime, ought to be so contrived as to have the greatest possible effect on others, with the least possible pain to the delinquent—for mankind, by their union, originally intended to subject themselves to the least evils possible. Beccaria gives essentially a deterrent theory of punishment: the intent of punishment is not to torment or to undo past crime, but to deter future injury to society, and punishment ought to be chosen to maximize its deterrent effect. But Beccaria's utilitarianism is combined with his rights-based social-contract theory. C.4.iii. Richard Posner The legacy of Bentham and Beccaria has carried over to the present Posner takes utilitarianism to the extreme in accounting for many aspects of the practice of legal punishment. His argument is interesting and highly controversial, and because of its extreme character offers us an instructive utilitarian foil to retributive justifications. Also, Posner, with the "law and economics movement" of which he is a leading advocate, has been an influential voice in public policy debates, and so consideration of his argument is particularly appropriate, given our concern ultimately with the application of theory to practice.

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Theories & Types of Punishment Utilitarianism arose in the eighteenth century and was originally addressed to social policy as a basis for penal reform and legislation. In the twentieth century it is still probably the most influential philosophy, at least in the penal sphere, and utilitarian principles largely determine present penal policy.13

C.5. Relation of deterrence theory with utilitarian theory: Deterrence also a part of utility theory 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 been 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 indispensible 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 was applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says, If the evil of punishment exceed 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. Deterrence has two purposes: (i) to restrain the wrong-doer from repeatedly indulging in crime, and (ii) to set an example for others to deter and prevent them from committing crimes or violating laws.

D. Intimidation: the utilitarian theory of punishment 13

Justifications of the Practice: Utilitarian and Retributive, UC Press E-Books Collection, 1982-2004 formely e Scholarship Editions, available at: http://publishing.cdlib.org/ucpressebooks/view?docId=ft4q2nb3dn&chunk.id=d0e2384&toc.id=&brand=ucpress (Visited March 24, 2013).

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Theories & Types of Punishment D. 1. General Introduction: Intimidation (also called cowing) is intentional behaviour that "would cause a person of ordinary sensibilities" fear of injury or harm. It's not necessary to prove that the behaviour was so violent as to cause terror or that the victim was actually frightened. Criminal threatening (or threatening behaviour) is the crime of intentionally or knowingly putting another person in fear of imminent bodily injury. "Threat of harm generally involves a perception of injury...physical or mental damage...act or instance of injury, or a material and detriment or loss to a person." "A terroristic threat is a crime generally involving a threat to commit violence communicated with the intent to terrorize other." Description Threatening behaviours may be conceptualized as a maladaptive outgrowth of normal competitive urge for inter-relational dominance generally seen in animals. Alternatively, intimidation may result from the type of society in which individuals are socialized, as human beings are generally reluctant to engage in confrontation or threaten violence. Like all behavioural traits it exists in greater or lesser manifestation in each individual person over time, but may be a more significant "compensatory behaviour" for some as opposed to others. Behavioural theorists often see threatening behaviours as a consequence of being threatened by others, including parents, authority figures, playmates and siblings. “Use of force is justified when a person reasonably believes that it is necessary for the defence of oneself or another against the immediate use of unlawful force.” Intimidation may be employed consciously or unconsciously, and a percentage of people who employ it consciously may do so as the result of selfishly rationalized notions of its appropriation, utility or self-empowerment. Intimidation related to prejudice and discrimination may include conduct "which annoys, threatens, intimidates, alarms, or puts a person in fear of their safety...because of a belief or perception regarding such person's race, colour, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct." Intimidation may be manifested in such manner as physical contacts, glowering countenance, emotional manipulation, verbal abuse, making someone feel lower than you, purposeful embarrassment and/or actual physical assault. “Behaviour may include, but is not limited to, epithets, derogatory comments or slurs and lewd propositions, assault, impeding or blocking movement, offensive touching or any physical interference with normal work or movement, and visual insults, such as derogatory posters or cartoons.” There is no legal definition in English law as to what behaviour constitutes "Intimidation", so it is up to the courts to decide on a case by case basis. However, if somebody threatens violence against somebody, then this may be a criminal offence. In most U.S. jurisdictions, the crime remains a misdemeanour unless a deadly weapon is involved or actual violence is committed, in which case it is usually considered a felony.

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Theories & Types of Punishment Criminal threatening can be the result of verbal threats of violence, physical conduct (such as hand gestures or raised fists), actual physical contact, or even simply the placing of a sign, an object or graffiti on the property of another person with the purpose of coercing or terrorizing. Criminal threatening is also defined by arson, vandalism, the delivery of noxious biological or chemical substances (or any substance that appears to be a toxic substance), or any other crime against the property of another person with the purpose of coercing or terrorizing any person in reckless disregard for causing fear, terror or inconvenience. Coercion is the use of “pressure, threats, or intimidation” to compel or “force somebody to do something” or “make something to happen.” "Terrorizing" generally means to cause alarm, fright, or dread in another person or inducing apprehension of violence from a hostile or threatening event, person or object. “It is not requisite, in order to constitute this crime, that personal violence should be committed.”14

E. Incapacitation: a behavioural prevention theory E. 1. General Introduction: Incapacitation in the context of sentencing philosophy refers to the effect of a sentence in terms of positively preventing (rather than merely deterring) future offending. Imprisonment incapacitates the prisoner by physically removing them from the society against which they are deemed to have offended. Long term imprisonment with the intention to incapacitate is often used by criminal justice systems against habitual criminals i.e. recidivists. Incapacitation also focuses on offender’s potential to commit future crimes. E.2. Examples: Examples of incapacitation include back-to-back life sentences, three-strikes sentencing, and other habitual offender laws. Cutting off a hand of a thief is also an example; this acts to prevent further thefts in a drastic manner, in addition to it having a perceived deterrent effect on others.15

F. Rehabilitation: a behavioural prevention theory 14

Intimidation, available at: https://en.wikipedia.org/wiki/Intimidation (Last Modified February 19, 2013 at 00:21). 15 Incapacitation (penology), available at: https://en.wikipedia.org/wiki/Incapacitation_ (penology) (Last Modified March 17, 2013 at 14:14).

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Theories & Types of Punishment F. 1. General Introduction: Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity. 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 contribute 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 peaceful state of mind, or into an attitude which would be helpful to society, 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 him/her, or rehabilitate them so as to make their re-integration into society easier. Punishments that are in accordance with this theory are community service, probation orders, and any form of punishment which entails any form of guidance and aftercare towards the offender. 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 his/her 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". Although the importance of inflicting punishment on those persons who breach the law, so as to maintain social order, is retained, the importance of rehabilitation is also given priority. Humanitarians have, over the years, supported rehabilitation as an alternative, even for capital punishment.

F. 2. Practical difficulties: Rehabilitation theories present however the following deficiencies: First, there is no sound scientific research to determine how different individuals react to the same rehabilitating methods. Second, rehabilitation may depend more decisively on the individual psychological background, hence on his particular motives to commit crimes, than on the rehabilitating methods or philosophy. Third, a rehabilitation program may prove to be too costly and complex to be successfully implemented and utilized in most countries. Finally, rehabilitation must refer to the sociological findings on the socialization and resocialization processes, as change in lifelong socially acquired patterns of behaviour and values entails a much more complex – and sometime traumatic – change on the individual's structure of character.

Psychopathy and recidivism Page 17

Theories & Types of Punishment Criminal recidivism is highly correlated with psychopathy. The psychopath is defined by an uninhibited gratification in criminal, sexual, or aggressive impulses and the inability to learn from past mistakes. Individuals with this disorder gain satisfaction through their antisocial behaviour and lack remorse for their actions. Findings indicate psychopathic prisoners have a 2.5 time higher probability of being released from jail than undiagnosed ones, even though they are more likely to recidivate. It has been shown that punishment and behaviour modification techniques do not improve the behaviour of a psychopath. Psychopathic individuals have been regularly observed to become more cunning and better able to hide their behaviour. It has been suggested by them traditional therapeutic approaches actually make psychopaths if not worse, then far more adept at manipulating others and concealing their behaviour. They are generally considered to be not only incurable but also untreatable. Psychopaths also have a markedly distorted sense of the potential consequences of their actions, not only for others, but also for themselves. They do not, for example, deeply recognize the risk of being caught, disbelieved or injured as a result of their behaviour.16

G. Marxist-theory of punishment These theories offer explanations as to why we imprison offenders not with claims of crime preventions, but that it is done with the goal of controlling those groups “whose socially disadvantaged position makes them volatile, disaffected and thus threatening”, Duff, 1994:306]. Criminal conduct is not a lower class monopoly, but is distributed throughout the various classes. But as has been shown, the same is not true of the distribution of punishment, which falls, overwhelmingly and systematically, on the poor and the disadvantaged. Discriminatory decision-making throughout the whole criminal justice system ensures that the socially advantaged are routinely filtered out: they are given the benefit of the doubt, or are defined as good risks, or simply have access to the best legal advice. Serious, deep-end punishments such as imprisonment are predominantly reserved for the unemployed, the poor, the homeless, the mentally ill, the addicted, and those who lack social support and personal assets. Increasingly, this class bias had taken on a racial complexion, as disadvantaged minority groups come to be massively over-represented in the prison population., Duff, 1994:306] The benefits of using a Marxist framework to answer this question is that it allows us to understand why offenders from the working class are imprisoned and offenders from the middle/upper classes are not. Marxist theory is based upon the idea of class struggle and ideology. Important to our understanding of imprisonment are the two concepts of hegemony and relative autonomy. Hegemony is in simple terms leadership with the consent of the led (that is leadership that is considered by those who are led to be the legitimate exercise of leadership). Marxist theories tell us then, that the reason we imprison offenders is to control those who are a threat to dominant values.17 16

Rehabilitation (penology), available at: https://en.wikipedia.org/wiki/Rehabilitation_(penology) (Last Modified March 7, 2013 at 12:35). 17 Sociology of punishment, available at: http://en.wikipedia.org/wiki/Sociology_of_punishment (Last Modified May 14, 2012 at 20:37).

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Theories & Types of Punishment H. Humanitarian-theory of punishment H.1. General Introduction: In its most general form, humanitarianism is an ethic of kindness, benevolence and sympathy extended universally and impartially to all human beings. Humanitarianism has been an evolving concept historically but universality is a common element in its evolution. No distinction is to be made in the face of suffering or abuse on grounds of gender, sexual orientation, tribe, caste, age, religion, or nationality. Humanitarianism can also be described as the acceptance of every human being for plainly just being another human, ignoring and abolishing biased social views, prejudice, and racism in the process, if utilized individually as a practiced viewpoint, or mindset.

H. 2. Reforms of the humanitarian movement H.2.i. Abolition of slavery: a) Great Britain The process of abolition in Great Britain and the Empire went through a number of stages: the elimination of slavery internally; that is its prohibition and non-recognition within Great Britain; the abolition of the slave trade from British ports and by British traders; the prohibition of slavery within the British dominions. In England slavery was declared unlawful in 1772 by the Lord Chief Justice, Lord Mansfield, on a writ of habeas corpus which came before him brought by a slave, Somersett. b) United States The population of the slave states in America on the eve of the civil war in 1860 was 8,098,000 of whom 4,204,000 were black. There were 385,000 slave-holders: of these the 46,000 who owned more than 20 slaves were "planters". By the 1830s the North, which had itself renounced slavery, was increasingly influenced by the abolitionist movement in England. The opposition to slavery widened. Perhaps, as Abraham Lincoln said in his Presidential campaign, the Union had to become one or the other. It could not remain slave and non-slave. In 1852 Harriet Beecher Stowe published Uncle Tom's Cabin. It had a powerful effect on both sides of the Atlantic. It described the cruelties of the system and the horrors of remote plantations. By the end of 1852 hundreds of thousands of copies of the book had been sold in the United States.

President Lincoln's proclamation emancipating the slaves took effect on 1 January 1863. With the defeat of the South, slavery was in effect finished in the United States. In order to implement abolition entirely a constitutional amendment was required. The thirteenth Amendment came into force after Lincoln's assassination, prohibiting slavery throughout the Union. H.2.ii. Humanising of criminal punishments:

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Theories & Types of Punishment Medieval punishments were cruel and, in many respects, that remained the position in the 18th century: hanging, drawing and quartering, beheading, boiling and lesser punishments designed only to humiliate such as the pillory and placing an offender in the stocks. Reform was, in the first instance, a product of the Enlightenment. The reformer who led in this was the Italian, Cesare Beccaria. H.2.iii.Prison reform: In the 18th century, prisons were, in the words of Henry Fielding, "sewers of idleness". Prisons were farmed out to private persons whose object was simply to make a profit. "Women were thrown in the same common ward as men; first offenders with hardened recidivists; inoffensive civil debtors with muggers... ten year old boys with homosexual rapists". The leading reformer was John Howard (prison reformer) whose great work, The State of Prisons in England and Wales with preliminary observations and an account of some foreign prisons was published in 1777. Howard was High Sheriff of Bedfordshire and was shocked by the horrors of prison life and the callousness of gaolers. Not only were gaols indescribably dirty but were so overcrowded that great numbers of prisoners died each year from gaol fever. Prison reform has had many vicissitudes. Some of the early theories of reform with their emphasis on solitary confinement in reaction to the 18th century congregating of prisoners were erroneous. Nevertheless, the great divide in prison reform is, without question, the humanitarian reforms of the late 18th and 19th centuries. H.2.iv. Abolition of torture: Torture which had been permitted by law and implemented throughout continental Europe, was abolished in every European country throughout the 18th century. This achievement was the work of the Enlightenment: Beccaria and Voltaire being the leaders. H.2.v. Treatment of the mentally ill: The 17th century scientific revolution in Europe influenced physiology with such notable discoveries as the circulation of the blood and the existence of microbes. It was accepted that the cause of disease was not magical or demonic. But little immediate progress was made in the field of mental illness.

Foremost in bringing about humanitarian change was Dr Phillipe Pinel (1745–1826). Pinel was physician to Biutre prison in Paris where a large number of lunatics were kept. An incident occurring to a friend led him to his life's work. The friend suddenly lost his mental balance and, as was customary, was locked up in the asylum. He managed to escape from his cage and took refuge in the woods. A week later his body was found half devoured by wolves. Pinel decided to devote himself to the study of insanity. The study of psychology as a field of study separate from philosophy began towards the end of the 19th century. Experimentation on mental behaviour commenced with Weber. In 1899 Emil Kraepelin identified the condition dementia praecox in which a person loses touch with reality Page 20

Theories & Types of Punishment and distinguished it from the manic depressive psychosis. From this point modern psychology developed. The 20th century culminated in the intersection of reformist and philanthropic humanitarianism in the treatment of the insane. The rational recognition that the insane are fully human, are not diabolically controlled and manipulated and the legislative provision to protect and rehabilitate them all belong within the traditions of the humanitarian movement, combining care with reason. H.2.vi. treatment of women and The French Revolution : In England, in 1800, the rights of a woman devolved upon her husband on marriage. She could not make a Will or be party to a contract or appear in court. The wife's personal chattels automatically became the property of her husband. As John Stuart Mill, writing in the 1860s said, "she could acquire no property but for him, the instant it becomes hers even if by inheritance, it becomes ipso facto his." H.2.vii. Prevention of cruelty to animals: Throughout human history forms, humans have treated animals in ways that are sometimes considered cruel by proponents of humanitarianism. Maltreatment of animals was due partly to cruelty and partly to indifference. Nevertheless, it was encouraged, or at least, not discouraged by European thought. The stoics who advanced European ethics so much in the idea of the spiritual equality of human beings taught that this applied only to rational creatures and thus did not apply to non-human animals.

H.3. Humanitarianism internationally Formation of the Red Cross and international humanitarian action The formation of the Red Cross (The International Committee of the Red Cross) in 1863 to alleviate suffering resulting from war, is claimed to be "the world's first humanitarian organisation", but is not the first instance of organized humanitarian action internationally. The Red Cross was also largely responsible for developing the other strand of international humanitarianism, the birth of international humanitarian law.18

I. Expiation-theory of punishment Jurists who support this theory, believes that if the offender expiates or repents, he must be forgiven. This theory is akin to the law of torts. It based on: 1.

“Recognition of rights and grievance” of the victim or victim’s family members is the primary and essential things in expiation theory. 2. The accused is not physically punished. He is economically punished, and such compensation is awarded to the victim or victim’s family members. 3. Generally, expiation theory is adopted in light natured offences. (Section 320 compoundable offences of Cr. P.C.). 18

Humanitarianism, available at: https://en.wikipedia.org/wiki/Humanitarianism (Last Modified March 13, 2013 at 02:56).

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Theories & Types of Punishment 4.

Expiation theory is a new thinking of 19th and 20th centuries

Conclusion After going through in such detail, we can say that no theory of punishment is exhaustive. One seems good and beneficial at one place but incompetent and incomplete to handle the other situation. So, the golden way might be the conjuncture of all good qualities of all theories, to be successful in every situation. As after the development of human rights concept, the illegal curtailment of fundamental rights of the accused is not possible. Thus, with the development of new theories of penology a middle way has been carved out i.e. reformative theory & many more. Hence, we can say that, being taking care of victim’s rights; justice has to be done with accused too, by carving out several humanitarian theories of punishment. Even in India, the Indian Penal Code, 1860 has provided the forms of punishment which applies uniformly upon the citizens of India. Thus, by adopting the Indian Penal Code, the relevancy of the customary and religious forms of punishment has become faded in its operation.

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