Introduction: The concept of punishment has evolved over centuries, reflecting changing societal norms and philosophies. One such theory, the preventive theory of punishment, has its origins in the Enlightenment era and has since influenced legal systems worldwide. This essay explores the origins of the preventive theory, its founder, and how it is reflected in case law through various acts aimed at preventing future crimes.
Origins and Founder: The preventive theory of punishment emerged during the Enlightenment period in Europe, notably championed by Cesare Beccaria, an Italian philosopher, and jurist. Beccaria’s seminal work, “On Crimes and Punishments” (1764), laid the groundwork for modern criminology and criminal justice systems. Beccaria argued that punishment should serve a utilitarian purpose, primarily aimed at preventing future crimes rather than exacting revenge or retribution. He advocated for proportionate punishment, swift justice, and the certainty of punishment to deter potential offenders.
Acts Related to Preventive Theory: Acts related to the preventive theory of punishment encompass various measures aimed at deterring, incapacitating, or rehabilitating offenders to prevent future criminal behavior. These include:
Deterrence: Deterrence aims to discourage individuals from committing crimes by imposing punishments severe enough to outweigh the benefits of criminal behavior. Case laws reflecting deterrence include decisions to impose substantial fines or lengthy prison sentences for offenses deemed particularly harmful or egregious. For example, landmark cases involving white-collar crimes often result in significant financial penalties to deter corporate malfeasance.
Incapacitation: Incapacitation involves removing offenders from society to prevent them from committing further crimes. Case laws reflecting incapacitation may include mandatory minimum sentences or life imprisonment for habitual offenders or those convicted of violent crimes. Three-strikes laws in the United States, which mandate lengthy sentences for individuals convicted of three or more serious offenses, exemplify this approach.
Rehabilitation: Rehabilitation focuses on addressing the underlying causes of criminal behavior and reintegrating offenders into society as law-abiding citizens. Case laws reflecting rehabilitation may involve diversion programs, probation, or community-based rehabilitation initiatives. Drug courts, for instance, offer non-violent drug offenders the opportunity to undergo treatment and counseling as an alternative to incarceration.
Reflecting Preventive Theory in Case Law: Case law demonstrates the application of the preventive theory of punishment through judicial decisions that prioritize deterrence, incapacitation, or rehabilitation. For example:
In Roper v. Simmons (2005), the U.S. Supreme Court abolished the juvenile death penalty, citing evolving standards of decency and the need to rehabilitate youthful offenders rather than impose irreversible punishments.
Gideon v. Wainwright (1963) established the right to legal counsel for indigent defendants, ensuring fair trials and upholding the principle of deterrence by guaranteeing competent defense representation.
United States v. Booker (2005) rendered mandatory sentencing guidelines advisory rather than binding, allowing judges to consider individual circumstances and tailor sentences to promote rehabilitation while still deterring criminal conduct.
Conclusion: The preventive theory of punishment, pioneered by Cesare Beccaria, continues to shape contemporary criminal justice systems worldwide. Through deterrence, incapacitation, and rehabilitation, legal frameworks seek to prevent future crimes while balancing the principles of justice and proportionality. Case law reflects the application of this theory through decisions that prioritize preventive measures, ensuring a more effective and equitable administration of justice in society.
Punishment is a process by which the state inflicts some pain to the persons or property of person who is found guilty of Crime. The Object of Punishment is to protect society from mischievous and undesirable elements by deterring potential offenders, by preventing the actual offenders from committing further offenses and by reforming and turning them into law abiding citizens. The importance of theories of punishment has been recognized even in ancient times for the protection and welfare of the State and its people. In ancient India, the King was duty-bound to punish the offender. The purpose of the administration of criminal justice is to punish the offender. The state is the main body that punishes Criminals. Punishment is some kind of pain or loss given to the offender for his criminal act which may either be intended to deter him from repeating the offence or maybe an expression of society’s disapprobation for his anti-social conduct or it may also be directed to reform and regenerate him and at the time protect the society from law-breakers. The topic, theories of punishment will give you all the information about the theories and forms of punishment.
1.Deterrent theory of punishment
The term deterrent, comes from the word deter which aims at preventing criminals or individuals from committing the offence of any crime. This keeps in mind that an individuals probability of committing any crime is future is lowered and it will generate a fear in their minds so that they are aware of the consequences of their criminal act. The idea of Deterrent theory of punishment is a Utopian idea.
The objective of deterrent theory is to prevent or deter crime by establishing fear in the minds of the society or by creating an example before individuals and since death penalty is an extreme form of punishment, it has the power to stop such crimes from being committed in future.
This can be understood in the words of Dr. Bernett J, who said: Thou art to be hanged not for having stolen a horse, but in order that other horses may not be stolen. This mean that deterrent theory of punishment aims not only at punishing a criminal but ensuring that the same kind of act is not repeated again in the future.
Three major components of the deterrent theory
Severity- The punishment must be severe so that the people should afraid to do the crime and obey the law.
Certainty- the punishment must happen every time when the crime occurs.
Swiftness- The punishment must be given fast in order to make it more deterrent.
After knowing these facts, the person will think 10times before doing the crime. Although the deterrent theory was harsh, it was considered the deterrent theory as the best theory of punishment as the crime rate was very low due to this theory of punishment. In India, inhuman punishments such as mutilation, beheading, flogging were in vogue till the end of the 18th century.
2. Retributive Theory
The Retributivist bases the theory of punishment on the belief that an offender deserves to receive suffering that matches the severity of the crime committed.Retributive justice is defined as a form of justice that is committed to giving wrongdoers punishments that are proportionate to their crimes. Retribution, meaning ‘‘repayment”, comes from the Old French retribution, retribucion and also directly from the Latin retibutionem meaning ”recompense, repayment”. The root Latin word, tribution means ”I pay back”. Modern use has restricted the word to the meaning ”evil given for evil done”. It is the belief that individuals should receive what they deserve according to their actions. Retribution law is therefore defined as a law system that is focused on retributive justice as the main method of resolving cases.
The 3 core principles of retribution are:
Those who commit certain crimes morally deserve to suffer a proportionate punishment.
This punishment is intrinsically morally good if a legitimate punisher gives them the punishment they deserve. and
It is morally wrong and unallowable to intentionally punish the innocent or inflict punishment that is disproportionate to wrongdoers.
Retributive justice requires that the punishment be proportionate and meted out at the same level as the crime. In biblical times, retribution was explained with the example of ‘an eye for an eye’ or a ‘tooth for a tooth’,
3. Preventive theory
According to Paton ” The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose. 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. The criminal under this theory is punished with death, life imprisonment etc.
By instilling the fear of punishment in the mind of a probable offender
By disabling an actual offender, either permanently or temporarily
By educating the public at large about the threat of the punishment.
The Supreme Court held in Dr. Jacob George v. State of Kerala1994 SCC (3) 430 that the aim of punishment should be punitive, reformative, preventive, retributive, and compensatory. It is not a good punishment policy to favour one hypothesis over the other. Each principle of retribution should be applied separately or in combination depending on the case’s merits. “Every saint has a history, and every sinner has a future,” it is often said. Since offenders are an important part of society, it is also the duty of society to improve and correct them to make them active members of society. Since crime avoidance is a significant objective of both culture and law, none of which should be neglected.
4. Reformative Theory
The main objective of punishment should be to reform the criminal. Kautilya regarded the object of punishment as reformatory. He felt that crime was inherent in every social set-up and it spread like a contagious disease from man to man. He, therefore, suggested that the criminal must be reformed by finally doing away with the criminal tendency in him.
“Every saint has a past, every sinner has a future.” -V. R. Krishna Iyer, J12. “… the humanistic approach should not obscure our sense of realities.”When a man commits a crime against society by committing a diabolical, coldblooded, pre-planned murder of one innocent person the brutality of which shocks the conscience of the court, he must face the consequence of his act. Such a person forfeits his right to life.” – A. P. Sen, J13
According to this theory crime is like a disease. This theory maintains that you can cure by killing. The ultimate aim of reformists is to try to bring about a change in the personality and character of the offender, so as to make him a useful member of society15. 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.
Punishment is, therefore, said to be justified because-
(i) It provides an opportunity for state to take steps to reform offender and control crime.
(ii) It is both a deterrent and an effective condemnation and as such it has reformative consequences.
(iii) The ultimate aim of the punishment is to ‘rationalize’ the offender, to ‘readjust’ him to society, to ‘rehabilitate’ him or to ‘change him deep inside.
Criminals are to be ‘treated’ in order to cure them of their sickness and make them emotionally healthy, law abiding citizens just like the rest of us. The goal of rehabilitation is to re-socialize offender by building into them the motivation to obey the law.'”
In the landmark case of DK Basu v. State of West Bengal (1997 ) 1 SCC 416 the Supreme Court ruled that a victim who is under the protection of the state has every right to compensation because the officer of the state has violated her Right to Life, which is covered under Article 21 of the Constitution.
5.Theory of Compensation / Expiatory
The word “Expiate” means ” to make complete atonement for, or to make satisfaction or reparation for”.This theory is based on morals.
Hagal & Kohler are the main supporters of this theory. Hagel defines ” the punishment makes the criminal to expiate for the wrong done” According to this theory, expiation or repentance by offender itself is a punishment. if the offender expiates or repents, he must be forgiven.
This theory relies on compensation to the victim for the loss caused by the accused. In this way, the offenders are made to realise the same sufferings they have caused to the victim. First, the offender who caused harm to the person or property is responsible for making up for their wrongdoing. Second, the State is responsible for protecting its citizens; if it cannot do so, it must recompense the victims.
this type of punishment was prevalent in ancient Indian criminal law. Expiations were performed by way of uttering manthras, fasting, self-immolation, or even burning onself to death.
Conclusion
Punishment under the Indian Penal Code is not based on any one theory mentioned above. It is a combination of deterrent, preventive and retributive theories. Criminal are not born but are products of the society set up is to correct the wrong doer. Keeping in view the present position of criminal administration of justice the Supreme Court of India held in Bachan singh V. State of PunjabAIR 1980 SC 898 the death sentence should be awarded for murder in the rarest of rare cases. None of the above theories can be adopted as sole standard of punishment for the perfect penal code. The perfect system of criminal justice is the result of a compromise between the underlying principles of all the theories.
