Preventive Theory of Punishment

Introduction

The idea of punishment is not new to man. Since the beginning of civilisation and the coming into existence of laws, punishment has been viewed as a means of mitigating crime from the society. Punishment implies conformity to societal norms, to protect individuals from harm to their person or property, and to maintain peace and order in the world. But the more important task that it fulfills is that of the response inflicted upon a human being or a group, against an act deemed undesirable or unacceptable by the public at large. Punishment is usually inflicted upon by an authority – in the present day, it is the State, or the government, exercising this power.

The term associated with punishment is crime, because generally punishments are inflicted against criminal offenders. Capital punishment, life imprisonment, solitary confinement etc. are some of the examples of extreme forms of punishment, given in rare cases to serious offenders. However, punishment can also come in the form of fines and penalties, which is often seen in cases of less serious nature or civil cases where monetary compensation is largely awarded.

Punishment, as a term, can have several meanings under different contexts, which renders it without a single definition for general use. But the motive behind awarding of punishment can be found in the four major theories of punishment.

Theories of Punishment

Punishment is not without motive, because the act of inflicting unsolicited outcomes on an individual calls for justification. This is where the theories of punishment come into play. There are four major theories of punishment:

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

Apart from these, certain other theories have also emerged with further developments in penology, such as:

• Incapacitation Theory
• Compensatory Theory
• Utilitarian Theory, etc.

Each theory represents a different justification for punishment, and accepts or denies different kinds of punishments accordingly, which can range from torture and imprisonment to treatment. The justifications may also depend on customs and traditions, level of knowledge, and certain socio-economic conditions. But the common point is that each theory of punishment requires some amount of suffering and loss of freedom for a certain time. Over the past years, different theories have come to dominate different legal systems of the world, but it can be said that only an amalgamation of the four major theories can result in an influential and effective legal system.

Preventive Theory of Punishment

Justice Holmes, an American jurist and legal scholar, stated that there can be no case in which the law-maker makes certain conduct criminal without showing a wish and purpose to prevent that conduct. Prevention, for him, can be the chief and only universal purpose of punishment. The law threatens certain pains if one does certain things, intending thereby to give one a new motive for not doing them. If one persists in doing them, one has to inflict the pains in order that the threats may continue to be believed.

The main aim of preventive theory of punishment is to prevent further crimes being committed, which is done through disabling the criminal – holding him/her in custody or inflicting some kind of pain for the crime he/she has committed. Supporters of the Utilitarian Theory, like Jeremy Bentham and John Stuart Mill, support this theory because of its humanising approach towards the criminal. Prevention can be exercised in the following three ways:

• 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 effectiveness of the preventive theory depends upon the efficacy of the legal system – how fast the system works, how accurate are the investigation and reports etc. If there is undue delay in awarding punishment, the offender may not feel threatened to commit the same crime again, and the public may lose confidence in the system existing on such theory.

The ultimate goal of the preventive theory of punishment is to disable the criminal from committing any further crimes, whether of a similar or different nature. This disablement may be either permanent or temporary. Imprisonment is a form of disablement, but where it is life imprisonment, the disablement is permanent, and where it is only for a specific amount of time, say seven years, then the disablement is temporary, although it may put a target on the back of the offender.

In Surjit Singh v. State of Punjab[1], one of the accused entered the house of the victim with the intention to commit rape, but since the victim shouted for help, the other accused suggested to kill the victim. The accused responsible was booked under section 450 of the Indian Penal Code, house trespass in order to commit a crime punishable with life imprisonment, which accounts for only imprisonment for a term not more than ten years, as well as fine. Had the accused actually committed the offence of rape, he would have been liable for permanent disablement i.e. life imprisonment. But here, the disablement was temporary, i.e. for ten years.

Preventive theory of Punishment seeks to lessen the repetition of crime by the offender, by taking away his power to do so, through disablement. It scarcely takes into account the motive of the crime, or the situations responsible for building the momentum of the offender. It also does not answer the question of rehabilitation, since it relies on imprisonment – physical restriction of the offender so that he is unable to commit the offence again. It also acts as a threat to the general public, showcasing the offender as an example, and the fact that a certain crime could lead to loss of freedom, or in certain cases, even life. But the aims of preventive theory of punishment can only be realised when an efficient legal justice system is in place, which, sadly, is not the case in India.

Prevention and Deterrence

The preventive theory of punishment can sometimes be confused with the deterrent theory; however, some consider both as one and the same. While their ideology may be the same, preventive theory emphasizes more on the punishment of the offender and his disablement, in turn preventing that offender from acting in the same way again, whereas the deterrent theory of punishment focuses on the offender as an example for himself as well as the rest of the society, in turn leading other people to deterrence. Like prevention, deterrence also rests on the swiftness of the legal system, and states that the punishment so awarded must be exemplary in nature, so that people should avoid engaging in similar acts. Punishments of flogging and mutilation were prevalent in the medieval ages, and although harsh, set an example for the public in general.

A major criticism of both the theories is that in cases where the people are first-time offenders, they are awarded imprisonment, and kept with criminals of all types – those who may have committed heinous crimes. This hardens them emotionally and does little to no help of reforming them. Also, exemplary punishments such as mutilation or death sentence are considered too harsh, and are not allowed by most countries, since they take away basic human rights. But conformers of the theories are of the view that people are prevented from committing crimes when the punishment of the same is in their knowledge, typically when it is harsh. Even if a person is unaware of the exact punishment that an offence may lead to, it is assumed that offence of a more serious nature will attach with itself a harsher punishment, which is what leads to heinous crimes being prevented.

Overview of Theory of Punishment

In Dr. Jacob George v. State of Kerala[2], the Supreme Court held that the ultimate aim of punishment was to be deterrent, reformative, retributive, preventive, as well as compensatory. If one theory was to be preferred over others, it would not amount to a sound punishment. Each theory needs to be understood independently and applied according to the facts of the case as well as the nature of offence and offender. The Supreme Court stated the quote “every saint has a past and every sinner has a fortune”, meaning that where a person is not an offender in the eyes of law, it cannot be claimed that he never committed any wrongful act, and where a person is an offender in the eyes of law, it cannot be claimed that he had been an offender all his life. What the Supreme Court essentially did here was that it provided a concoction of all the theories of punishment, and suggested that each theory be applied according to the facts and circumstances of each case.

The duty of the authorities is not only to prevent the crime from being committed again, or to punish the offender so that it sets an example in the society, but also to reform the offender, understand his/her background and the motive for committing the crime, which the preventive theory of punishment fails to take into account. While it may be effective where serious crimes or chronic offenders are concerned, for first-time offenders or petty offences, preventive, or even deterrent theory, will prove to be extreme.

Punishment is something that needs to be awarded very carefully. The competency of the judiciary as well as the morals of the entire legal system of a nation are reflected from the form of punishments it awards. Punishment, especially the ones like rigorous imprisonment or imprisonment for a long period of time changes a person’s mental and physical capacity drastically. While punishment is inevitable, the principles of justice and human rights should not be lost.

FAQs of Preventive Theory of Punishment

[1] 2007 III Cr. L. J. 2851 SC.

[2] 1994 SCC (3) 430 JT.