theories of Punishment

1. COMPARATIVE CRIMINAL
JUSTICE SYSTEM
PHD
BY
DR. SHEIKH MUHAMMAD
ADNAN
Dr. Sheikh Muhammad Adnan

2. WHAT IS PUNISHMENT?
• PUNISHMENT
• PUNISHMENT IS THE ACT OF INFLICTING A CONSEQUENCE OR
PENALTY ON SOMEONE AS A RESULT OF THE WRONGDOING,
OR THE CONSEQUENCE OR PENALTY ITSELF. IN OTHER WORDS,
A PENALTY IMPOSED ON AN OFFENDER FOR A CRIME OR
WRONGDOING.
• BLACK LAW DICTIONARY DEFINES PUNISHMENT AS “ IN
CRIMINAL LAW, ANY PAIN, PENALTY, SUFFERING, OR
CONFINEMENT INFLICTED UPON A PERSON BY THE AUTHORITY
OF THE LAW AND THE JUDGMENT AND SENTENCE OF A
COURT, FOR SOME CRIME OR OFFENSE COMMITTED BY HIM,
OR FOR HIS OMISSION OF A DUTY ENJOYED BY LAW”
Dr. Sheikh Muhammad Adnan

3. TYPES OF PUNISHMENT
• PUNISHMENT ARE EITHER CORPORAL OR NON-CORPORAL.
• THE PUNISHMENTS WHICH ARE CORPORAL INCLUDES:
• DEATH, WHICH IS USUALLY DENOMINATED CAPITAL PUNISHMENT;
• IMPRISONMENT, WHICH IS EITHER WITH OR WITHOUT LABOUR ; VIDE
PENITENTIARY:
• NON-CORPORAL
• FINES
• FORFEITURE
• SUSPENSION OR DEPRIVATION OF SOME POLITICAL OR CIVIL RIGHT
• COMPULSION TO REMOVE NUISANCE
Dr. Sheikh Muhammad Adnan

4. CRIMINOLOGICAL THINKING ON
PUNISHMENT
• PUNISHMENT
• “ A LEGALLY APPROVED METHOD DESIGNED TO FACILITATE THE TASK
OF CRIME CONTROL” (GARLAND)
• TWO OPPOSING IDEAS OVER WHAT THE PURPOSE OF PUNISHMENT
SHOULD BE:
• AIM OF PUNISHMENT – PREVENTION OF FUTURE CRIMES =
REDUCTIVIST
• THOSE WHO LOOK TO THE PAST TO PUNISH CRIMES ALREADY
COMMITTED = RETRIBUTIVIST
• IN PRACTICE, MOST CRIMINAL JUSTICE SYSTEMS HAVE THESE TWO
AIMS CO-EXISTING IN AN UNEASY HYBRID COMBINATION
Dr. Sheikh Muhammad Adnan

5. REDUCTIVIST PRINCIPLES
• JUSTIFIES PUNISHMENT ON GROUNDS OF ITS ALLEGED FUTURE
CONSEQUENCES
• SUPPORTED BY FORM OF MORAL REASONING KNOWN AS UTILITARIANISM
• BY POINTING TO A FUTURE OR GREATER GOOD, REDUCTIVIST PRINCIPLES
FOCUS ON THE INSTRUMENTAL “ENDS” OF PUNISHMENT
• SO… THE AVOIDANCE OF FURTHER CRIME CAN BE ACHIEVED THROUGH:
• DETERRING POTENTIAL CRIMINALS (DETERRENCE)
• REFORMING ACTUAL CRIMINALS (REFORM + REHABILITATION)
• KEEPING ACTUAL OR POTENTIAL OFFENDERS OUT OF CIRCULATION
(INCAPACITATION)
Dr. Sheikh Muhammad Adnan

6. REDUCTIVIST PRINCIPLES
• UTILITARIANISM
• ADVOCATED BY JEREMY BENTHAM (17148 – 1832)
• FOR PUNISHMENT TO REDUCE FUTURE CRIMES, THE PAINS
AND UNHAPPINESS CAUSED TO THE OFFENDER MUST BE
‘OUTWEIGHED BY THE AVOIDANCE OF UNPLEASANTNESS
TO OTHER PEOPLE IN THE FUTURE – THUS MAKING
PUNISHMENT MORALLY RIGHT FROM A UTILITARIAN POINT
OF VIEW.’ (CAVADINO AND DIGNAN)
Dr. Sheikh Muhammad Adnan

7. DETERRENCE
• CRIME CAN BE DISCOURAGED THROUGH THE PUBLIC’S FEAR OF
PUNISHMENT THEY MAY RECEIVE IF THEY BREAK THE LAW
• INDIVIDUAL DETERRENCE
• WHEN SOMEONE FINDS THE EXPERIENCE OF PUNISHMENT SO
UNPLEASANT THAT THEY NEVER WISH TO REPEAT THE INFRACTION
OF FEAR OF THE CONSEQUENCES (“SHORT SHARP TREATMENT”)
• GENERAL DETERRENCE
• OFFENDERS ARE PUNISHED NOT TO DETER THE OFFENDERS BUT TO
DISCOURAGE POTENTIAL OFFENDERS
Dr. Sheikh Muhammad Adnan

8. INCAPACITATION
• OFFENDERS ABILITY TO COMMIT FURTHER CRIMES BY LOCKING THEM UP
• NOT ABOUT CHANGING THE OFFENDER’S BEHAVIOUR OR ABOUT CAUSES OF CRIME
• IT IS ABOUT PROTECTING POTENTIAL VICTIMS AS ESSENCE OF PUNISHMENT AS
OPPOSED TO RIGHTS OF OFFENDERS
• SENTENCING POLICY – MAIN PHILOSOPHICAL JUSTIFICATION FOR IMPRISONMENT –
‘PRISON WORKS’ – TAKES PERSISTENT AND SERIOUS OFFENDERS OFF THE STREETS
AND SO, IT IS CLAIMED, REDUCES THE CRIME RATE (MURRAY) – DRAMATIC GROWTH
IN PRISON POPULATION IN RECENT YEARS
• MOST EXTREME FORM OF INCAPACITATION = DEATH PENALTY: SEX OFFENDERS –
SURGICAL OR CHEMICAL CASTRATION
• MANDATORY MINIMUM SENTENCING – THREE STRIKES AND YOU’RE OUT
Dr. Sheikh Muhammad Adnan

9. RETRIBUTIVIST PRINCIPLES
• WRONGDOERS SHOULD BE PUNISHED BECAUSE THEY
DESERVE IT, IRRESPECTIVE OF ANY FUTURE BENEFICIAL
CONSEQUENCES
• AN EYE FOR AN EYE” 1750BC IN BABYLON
• BASED ON CONCEPT OF LEX TALIONIS = LAW OF
RETALIATION
• PRINCIPLE DEVELOPED BY PHILOSOPHER IMMANUEL
KANT
• REVIVAL IN THE PAST 30 YEARS OF RETRIBUTIVIST IDEAS
UNDER GUISE OF ‘JUST DESERTS
Dr. Sheikh Muhammad Adnan

10. JUST DESERTS’
• 1950S/60S – PENAL SYSTEM – IMPORTANT ELEMENT OF WELFARE STATE’S
PROGRAMME OF SOCIAL ENGINEERING – PREVENT CRIME THROUGH
DETERRING POTENTIAL OFFENDERS AND INCAPACITATING ACTUAL
OFFENDERS AND IT WAS HOPED THAT TREATMENT PROGRAMMES WOULD
REHABILITATE OFFENDERS
• MOVE BY MID 1970S ABOUT INDIVIDUAL RIGHTS – NEW RETRIBUTIVIST
ARGUMENT – JUST DESERTS
• OFFENDERS SHOULD BE PUNISHED ONLY AS SEVERELY AS THEY DESERVE
• PUNISHMENT FIT THE CRIME
• IN REALITY, OFFENDERS TEND TO BE ALREADY SOCIALLY DISADVANTAGED
SO THAT PUNISHMENT ACTUALLY INCREASES EQUALITY RATHER THAN
REDUCING IT
Dr. Sheikh Muhammad Adnan

11. JUST DESERTS’
• 1950S/60S – PENAL SYSTEM – IMPORTANT ELEMENT OF WELFARE STATE’S
PROGRAMME OF SOCIAL ENGINEERING – PREVENT CRIME THROUGH
DETERRING POTENTIAL OFFENDERS AND INCAPACITATING ACTUAL
OFFENDERS AND IT WAS HOPED THAT TREATMENT PROGRAMMES WOULD
REHABILITATE OFFENDERS
• MOVE BY MID 1970S ABOUT INDIVIDUAL RIGHTS – NEW RETRIBUTIVIST
ARGUMENT – JUST DESERTS
• OFFENDERS SHOULD BE PUNISHED ONLY AS SEVERELY AS THEY DESERVE
• PUNISHMENT FIT THE CRIME
• IN REALITY, OFFENDERS TEND TO BE ALREADY SOCIALLY DISADVANTAGED
SO THAT PUNISHMENT ACTUALLY INCREASES EQUALITY RATHER THAN
REDUCING IT
Dr. Sheikh Muhammad Adnan

12. SOCIOLOGICAL EXPLANATIONS OF
PUNISHMENT
• SOCIOLOGISTS EXPLORE THE DEEPER ROLE THAT
PUNISHMENT PLAYS IN SOCIETY
• NUMBER OF COMPETING PERSPECTIVES
• EACH ONE CAN BE INFORMED BY A SOCIAL THEORY
• MAIN THEORISTS – DURKHEIM, MARX, FOUCAULT
• THE SOCIOLOGY OF PUNISHMENT SEEKS TO UNDERSTAND
WHY AND HOW WE PUNISH
Dr. Sheikh Muhammad Adnan

13. EMILE DURKHEIM – SOCIAL
SOLIDARITY
• 1858 -1917
• EXAMINED RELATIONSHIPS BETWEEN CRIME, LAW AND PUNISHMENT TO
LOOK FOR MECHANISMS THAT CREATED SOCIAL SOLIDARITY.
• ALSO CALLED FUNCTIONALISM: WHATEVER ASPECT OF SOCIAL LIFE IS
BEING STUDIED, IT MUST BE APPROACHED FROM PERSPECTIVE OF
DISCOVERING WHAT ROLE IT PERFORMS IN PRESERVING SOCIAL STABILITY
• DURKHEIM IDENTIFIES THE FUNCTION OF MODERN PUNISHMENT IN
REASSURING THE PUBLIC SENTIMENT
• PUNISHMENT IS ABLE TO PLAY AN IMPORTANT POLITICAL ROLE IN
MAINTAINING AUTHORITY
Dr. Sheikh Muhammad Adnan

14. MARXIST THEORY IS BASED UPON THE
IDEA OF CLASS STRUGGLE AND
IDEOLOGY.
• MARXIST THEORIES TELLS US THEN, THAT THE REASON WE
IMPRISON OFFENDERS IS TO CONTROL THOSE WHO ARE A
THREAT TO DOMINANT VALUES.
Dr. Sheikh Muhammad Adnan

15. ACTIVITIES
• COMPARE THE DIFFERENCES BETWEEN REDUCTIVISTS AND
RETRIBUTIVISTS OVER HOW PUNISHMENT CAN BE JUSTIFIED
AND HOW MUCH PUNISHMENT OUGHT TO BE INFLICTED
• HOW MIGHT YOU APPLY MARXIST IDEAS TO
CONTEMPORARY TRENDS IN PUNISHMENT?
• WHAT DO YOU THINK THE LIMITS ON PUNISHMENT
SHOULD BE AND WHY?
Dr. Sheikh Muhammad Adnan

16. Q & A
Dr. Sheikh Muhammad Adnan