Penology -I - Schools of criminology PDF

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PENOLOGY AND VICTIMOLOGY INTERNAL ASSESSMENT- I ARTICLE REVIEW

REKHA ANAND 17010125045 DIVISION: ‘A’

SUBMITTED TO PROF. NAGESH SAWANT

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Table of Contents 1. ABSTRACT........................................................................................................................3 2. INTRODUCTION.............................................................................................................4 3. ORIGIN AND HISTORY OF THE PHILOSPHY OF PUNISHMENT.......................4 4. LITERATURE REVIEW..................................................................................................6 5. THEORIES OF PUNISHMENT......................................................................................8 o Deterrence (prevention).........................................................................................8 o Rehabilitation.........................................................................................................9 o Incapacitation and societal protection.................................................................9 o Retribution.............................................................................................................9 o Restoration...........................................................................................................10 6. SCHOOLS OF CRIMINOLOGY..................................................................................10 o CLASSICAL SCHOOL OF CRIMINOLOGY.................................................10 o POSITIVE SCHOOL OF CRIMINOLOGY....................................................12 o NEO-CLASSICIST SCHOOL............................................................................14 7. CONCLUSION................................................................................................................14

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The Philosophy of Punishment: A Study to the History of Classical and Positive Schools of Penology

ABSTRACT Punishment is a vital and essential component of our daily life. From the evolution of human civilization, the mere existence of crimes is as noticeable as the punishment. Carlsmith claimed that social behavior is moulded by the means of punishment and also the societal reaction to the social control or social obedience1. The severity of punishment is naturally dependent on the nature of the crime. Punishment is also viewed as an “institutionalized cruelty”. The eminent Thomas Reid in theory of punishment inferred it as “any of a series of impositions for instance fine, work service, probation imposed upon a person by authority of law after that individuals has been determined to be a criminal offender”. Furthermore, it is considered as the belief or intention of the person to who orders something to be done, and not the intention of the person to whom it is done, which settles the question whether it is punishment. The primary objective of this article is to identity the changing nature and forms of philosophy of punishment from a historical perspective. The article also enriches the associated factors which bring about the philosophical change from ancient period to modern age. There are three basic eras in the historical view point which are classical, neoclassical and modern era having retributive, deterrent, rehabilitative and re-integrative philosophies of punishment respectively.

The nature of punishment changes due to effect of the political

movement especially the French Revolution, industrialization, developments advancement of science and technology, the law enforcements like agencies, polices courts and correction systems. Although, the modern philosophy of punishment is re-integrative and rehabilitative but the punishment is highly debatable matter.

1 Akers, Ronald (1994). Criminological theories: Introduction and Evaluation. United States of America: Roxbury Publishing Company.

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INTRODUCTION In society we can see people of different sects and class. As not all the fingers are same, in the society too, there are citizens who abide by the law and others who flung the laws for their evil motive. It is the responsibility of the state to protect its interest. The person who does any act which is forbidden by natural justice or statutory law commits a crime. When any crime is committed it is not committed against the person but a state at large. What exactly constitutes a crime is defined in the laws of every state. Some acts may be a crime for some state and not for some other states.2 If the crime is committed it attracts punishment for commission of such offence so that it should not get repeated. To have its effect on the society the punishment used to be based on the objective it wanted to serve at large. Since time long punishments were based on the various theories of punishment, whose object ranged from deterrent, reformative, preventive and retributive. Whichever may be the punishment the prime purpose of giving justice to the society was important. The focus was always to punish the criminal. Is it only sufficient to punish the criminal? What about the reformation? The compensation to victim needs an equal attention. In this paper the author has tried to elaborate the theories of punishment in modern time and how the shift in criminal justice system from the criminal to the plight of victim that is victimology. ORIGIN AND HISTORY OF THE PHILOSPHY OF PUNISHMENT With prehistoric humankind, whose security and rights were protected without the interference of an organized society, punishment for crime was given a distinct prominence. This evolved the law of self-preservation his nature, primitive man's instincts was quickly led him toward an immediate destruction of those things or persons which harmed or caused threatened him or his property. Naturally, took a stance of more barbaric instinct than mere animal instincts would tend. Vengeance levitates in the minds of the humans. The reasons for the actions were the sense of loss or wrong which constituted latter-day crimes was resolved by vengeance which demanded immediate and summary reprisal.

2 Adler, Freda, Mueller, G.O.W. and Laufer, William S. (2004). Criminology and the Criminal Justice System, New York: McGraw-Hill Companies

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When left unmonitored in a society dwelling in their wrongs, humans tend to yield to an outraged passion which was satisfied with nothing short of complete eradication of his wrongdoer. This germ of retributive justice involved the elements of protection and prevention of wrong.3 Principle of Lex Talionis The law of punishment or “lex talionis” evolved through the instinct of retaliation, which demanded not only a restoration in kind where possible, but a sacrifice or punishment in kind where the loss, for example in the case of homicide, was beyond repair. The underlying principle of the Visigoths indeed, in the society granted the individual uproar just expansive forces, yet forced upon him the duty of managing the transgressor, settling upon the fairly secure presumption that the harmed man or his family, affected by a furious disdain, would not flop in such task. This made the personal motive of vengeance dominated all treatment of the wrongdoer and the effect was a punishment in its strictest and most barbarous sense of satisfying ones blood lust along with the personal loss or insult. The social group, which included the wrongdoer and his victim, soon recognized its relation to the wrong and retained a supervisory authority over the punishment for crime. Where authority was effective enough to permit and sustain a custom whereby the culprit was delivered to the victim's family. This system fostered a theory of retributive justice where one was allowed to kill his wrongdoers. It was the principle of an “eye for an eye” gained prominence as the ancient Hebrew Law. 4 Theory of Compensatory punishment Under this doctrine, in remote parts of China, relatives were subjected to the same punishment as the malefactor. So, too, the husband could be made to suffer for the guilt of his wife. This custom

3 Julian P. Alexander, Philosophy of Punishment, 13 J. Am. Inst. Crim. L. & Criminology 235 (May 1922 to February 1923) 4 Ibid

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stressed the theory of compensatory punishment5 and demonstrated its falsity through its failure to deal directly and solely with the offender himself. The responsibility of the wrongdoer came to be measured in terms of the gravity of his offense, which in turn involved the standing and position of the victim. Among a few of the tribes of Africa allows the murderer and the victim's friends in adjusting the extent of satisfaction required. This may be measured in terms of the lives of several lesser subjects or in consideration of more practical or intrinsic value. This involved the theory of compensation and the modern theory of a money fine retains this element.

LITERATURE REVIEW Punishment resorted to in any society, whether it be primitive, barbaric or civilized, are based on a twofold consideration 

the assumed damage of the antisocial act to the group



the measure of repayment that the social group exacts

At the moment philosophy of punishment is an essential part of the philosophy of life, freedom such as existentialism. Initially the philosophy of life stands against the punishment system but later some of the philosophers talk for the punishment system as a mean of social control or social obedience. But still there is a debate on this issue. The three major debates are found in contemporary penology such as need of punishment, abolishment of capital punishment and modern punishment system. In terms of the legal and penal thinking, existentialism which is the philosophy of the life nowadays is most compatible. Although it is not being seemed as before because there was a premature thought and that is the fruitful exchange between existentialism and penology is impossible. Existentialism evolved from Kirkeguard and popularized by the French philosopher and writer Sartre. Sartre and Heidegger will insist in varying ways that justice- and punishmentare subjective affairs for each individual, for individual is like another, no one situation is 5 Hoebel EA (1967) The Law of Primitive Man; A Study in Comparative Legal Dynamics. Cambridge, Harvard University Press, Massachusetts, USA, pp. 355.

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comparable to another mans. Existentialist rejects political and linguistic approaches to morality and betrays a marked concentration on the individual apart from society is a fundamental analysis which begins not with words, but with the ontological structure of man. Former idea is provided by the leading exponent of Existentialism Jean-Paul Sartre and the later is given by eminent philosophers Albert Camus also with Gabriel Marcel, Karl Jaspers, Emmanuel Levinas and Maurice Merleau-Ponty. 6 According to Sartre, man is a true subject of his own choosing, yet he is subjected to the artificiality of institutionalized standards and laws. As the individual becomes a member of the law abiding, punishment-approving, he slips inconspicuously into the anonymous institution and unknown allows his absolute freedom to be converted into the slavery of the organization man. He obeys: if he does not, he submits to punishment, which itself is form of social obedience And if he disobeys those he has to face punishment, formulated by those institutions. He recommends practicing absolute freedom and thus rejects traditional punishment system. Additionally, Sartre implies is punishment for other inertial force it reduces mans potential limits his freedom, constraints his humanity.

         potentially, limits his freedom, constraints his On the other hand Camus has emphasized not to the punishment system but to the capital punishment through breaking Sartrean existentialism. He has opined that, to be a man he must reject God while Sartre opined that man must become to be God. In this regard, Camus has pointed out some arguments: For future social benefit, punishment is necessary. Role of the capital punishment is not vengeance but for the protection of the society. According to the human Right thinkers, Punishment should be replaced by the reformation and corrections of the offender through maintaining his rights as a person. Capital punishment, the

6 Nozick, Robert, 1981, Philosophical Explanations, Cambridge, MA: Harvard University Press, pp. 366–74.

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ultimate limit is the severest type of punishment because nothing can be more painful, crueler to an individual than being deprived of the very life and existence. 7 Thus it creates an issue of arguments. The arguments in favor of Capital Punishment are: it is definite deterrent to crime; a moral war; a social need; a selective process; a legal demand; a matter of economic saving; humanitarian, definite, very easy; necessary for securing others from criminals.

               Philosopher Plato said that “If a man cannot be harmless otherwise than in sleep, it is better for him to die than live”. Criminal punishments are: result is grave injustice; leaves no room for atonement; is not selective; economic loss; and is not a way to curb crimes. A group of penologist is supported death penalty for the reasons of retribution, deterrence, incapacitation and the instrumental perspectives. On the other hand, Sometimes a few of criminologist and criminal justice personnel rejects the notions of death penalty due to the reasons of morality, the brutalization effect or the risk of executing an innocent person (Lambert, et.al. 2006) . Recently a new thinking has started to its philosophical viewpoint towards the present punishment system which is the Post modern thinking. It arises question about the penalizing and normalizing responses to crime which nowadays a great continuous tension in modern philosophy of punishment. The upcoming thinking that is punishment suggests about the transformation from the disciplinary society to actuarial society which refers to break the imprisonization thinking of punishment.

7 Quinn, Warren, 1985, “The Right to Threaten and the Right to Punish,” Philosophy and Public Affairs, 14: 327–373.

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THEORIES OF PUNISHMENT Punishment serves numerous social-control functions, but it is usually justified on the principles of retribution, incapacitation, deterrence, rehabilitation, and/or restoration. The specific principles that underlie these dominant philosophies for punishment are summarized below 1. Deterrence (prevention) Two reasons 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.8 Some criminologists state that the number of people convicted for crime does not decrease as a result of more severe punishment and conclude that deterrence is ineffective. Other criminologists object to said conclusion, citing that while most people do not know the exact severity of punishment such as whether the sentence for murder is 40 years or life, most people still know the rough outlines such as the punishments for armed robbery or forcible rape being more severe than the punishments for driving too fast or misparking a car. These criminologists therefore argue that lack of deterring effect of increasing the sentences for already severely punished crimes say nothing about the significance of the existence of punishment as a deterring factor. Some criminologists argue that increasing the sentences for crimes can cause criminal investigators to give higher priority to said crimes so that a higher percentage of those committing them are convicted for them, causing statistics to give a false appearance of such crimes increasing.9 These criminologists argue that the use of statistics to gauge the efficiency of crime fighting methods are a danger of creating a reward hack that makes the least efficient criminal justice systems appear to be best at fighting crime, and that the appearance of deterrence being ineffective may be an example of this.

8 Sellin, Thorsten. (1958). Pioneers in Criminology, Journal of Criminal Law, Criminology and Police Science, January- February, p.491. 9 Sharma, Rajendra K. (1998). Criminology and Penology. New Delhi: Atlantic Publishers and Distributors.

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2. Rehabilitation Some punishment includes work to reform and rehabilitate the culprit 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 behavior was wrong.10 3. 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, for example, Australia was a dumping ground for early British criminals. This was their way of removing or reducing the offender’s 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. 4. 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, 11even 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. 5. Restoration For minor offenses, punishment may take the form of the offender “righting the wrong”, or making restitution to the victim. Community service or compensation orders are examples of this sort of penalty. In models of restorative justice, victims take an active role in a process with their offenders who are encouraged to take responsibility for their actions, “to repair the harm they've 10 Shermen, W., Smith, A., Schmidt, D., and Rogan, P. (1992). Crime punishment and stake in Conformity: Legal and Informal Control of Domestic Violence, American Sociological Review, Vol-57, No-5.

11 Siegel, Larry J. (1998). Criminology- Theories, Patterns and Typologies. Belmont: Wadsworth Publishing Company

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done – by apologizing, returning stolen money, or community service. The restorative justice approach aims to help the offender want to avoid future offences”.

SCHOOLS OF CRIMINOLOGY The formal study of criminology began with Cesare Beccaria, an Italian jurist who in the late 18th century took a systematic approach to crime and criminals. He was the first person to study crime scientifically. The plea made in his treatise, “On Crimes and Punishments,” helped eliminate corrupt and inhumane practices of criminal law administration at the time. One of the biggest questions in criminology, or the study of crime and punishment, asks why people commit crimes. Many criminology theories are rooted in certain schools of thought, which help explain criminal behavior and enable the criminal justice system to appropriate punishment. CLASSICAL SCHOOL OF CRIMINOLOGY Classical School of Criminology was brought to light in the late 1700s and early 1800s. The legal systems around the 1700s did not work very well. The legal systems were s...