Theories Of Punishment Understanding Deviance

The classical school represented by the works of Jeremy Bentham and Cesare Beccaria assumes that the rational decision is always the decision that will maximise gain and minimise pain for each individual: the felicitation principle that lies behind the penal policy of deterrence. Hence, if the actor is rational, the state can influence any given decision by ensuring that the system of investigating criminal activity will swiftly detect the person responsible and the system of law enforcement through courts will dispense sufficient pain to each offender so that there will be both specific deterrence (i.e. that a particular offender will never choose to break the law again), and general deterrence (other potential criminals, observing the punishment of the one offender, will be deterred from following in his or her footsteps. [1] )

The Neoclassical School continues to adopt the traditional view that the punishment imposed by the state for the crime should reflect deterrence. However, they depart from the original theory by increasing the severity of sentences and limiting judicial discretion. This emphasises the social value of punishment rather than seeing punishment as an offender’s ‘just deserts’ in a system of retributive justice. It uses the offender as a symbol through which to send a message to society, rather than as a human being who should be judged on his or her own merits. It abandons the idea of proportionality between severity of punishment with the gravity of offence committed by the offender. This view has certain moral implications and high costs in maintaining a prison system for an increased number of prisoners. (Something which a third world country like ours could not certainly afford). Research has consistently shown that certainty of arrest rather than severity of punishment is the major deterrent.

According to Clarke crime is a purposive behaviour designed to meet the offender’s common place needs for such things as money, status, sex, excitement, and that meeting these needs involves the making of (sometimes quite rudimentary) decisions and choices, constrained as they are by limits of time and ability and the availability of relevant information. i.e. offenders make decisions that appear rational to themselves, and they can be persuaded not to engage in crime.

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Through Rational Choice Theory, Cornish and Clarke [2] describe crime as an event that occurs when an offender decides to take risk by breaking the law after considering his or her own need for money, personal values or learning experiences and how well a target is protected, how affluent the neighbourhood is or how efficient the local police are. Before committing a crime, the reasoning criminal weighs the chances of getting caught, the severity of the expected penalty, the values to be gained by committing the act, and his or her immediate need for that value. The intention is to increase the perceived risks of apprehension, or reduce the anticipated rewards for a crime, or remove the excuses to compliance with the law. The intention would be to design out crime, i.e. to make the disincentives to the commission of crime consistently outweigh the potential benefits. This would involve concerted efforts by the manufacturers of standard equipment less prone to theft, to design better security systems so that stolen goods cannot be used without a PIN or can be otherwise tracked. It also involves the adoption of surveillance technology to tag goods in stores electronically, install camera systems to monitor behaviour, improve street lighting, have more police officers on patrol, assist householders to improve their home security, etc. A co-ordinated strategy would potentially prevent more crime and so be more cost – effective than imprisoning the few offenders that are currently apprehended. This theory is predicated on the assumption that humans have set of hierarchically ordered preferences, or utilities. By reducing the opportunities for the commission of crimes and “target hardening”, i.e. making it more difficult to break into houses or to steal from shops, and encouraging more authority figures to assume responsibility, potential offenders will be deterred. There is, however, some criticism that better protecting one area will simply displace crime into a less protected area but the evidence is yet equivocal on whether such displacement does occur. The main problem, still remains in re-ordering the political priorities away from a penal-orientation and in favour of a prevention strategy. At present many states have invested heavily in the former and see no immediate need to change their policies.

To further understand the concept of deviance, the differential association theory is probably the best known Interactionist theory of deviance. This theory focuses on how people learn to be criminals, but does not concern itself with why they become criminals. Sutherland was following the tradition of Gabriel Tarde who argued that criminals were ordinary people who learned criminal behaviour through imitation of those with whom they interacted. Sutherland refined this proposition by requiring that the interaction occur in intimate groups, where the level of communication is more personal. They learn how to commit the crime; they learn motives, drives, rationalisations, and attitudes. George Herbert Mead had developed the idea of the “self” as a social construct, i.e. a person’s self-image is continuously being constructed and reconstructed in interaction with other people.

People define their lives by reference to their experiences, and then generalize those definitions to provide a framework of reference for deciding on future action. From a researcher’s perspective, a subject might view the world very differently if employed rather than unemployed, if in a supportive family or abused by parents. Hence, individual might respond differently to the same situation depending on how their experience predisposes them to define their current surroundings. A wallet might be found on the street. One individual might see an opportunity for altruism, returning missing property to its owner. The other might see an opportunity for self-enrichment. Differential association predicts that an individual will choose the criminal path when the balance of definitions for law-breaking exceeds those for law-abiding. This tendency will be reinforced if social association provides role models of significance to the actor. This does not deny that there may be practical motives for crime. If a person is hungry but has no money, there is a temptation to steal. However, needs and values are equivocal. To a greater or lesser extent, both non-criminal and criminal are motivated by the need for money and social status. Frustration and boredom may be felt by all.

Edward Sutherland and his students, Donald Cressey in particular, became the tenacious champions of the arguments that deviance is a way of life passed from generation to generation. First advanced in 1924, his theory of differential association attempted to make systematic the thesis that crime and deviation are culturally transmitted in social groups. It holds that criminal behaviour is learned in interaction with other people, especially in personal intimate settings, in a process of communication. Learning is held to embrace techniques of committing the crime and the direction of drives, motives, attitudes, and definitions of law. It was argued that a person will become criminal if he or she is exposed to an excess of definitions favourable to the violation of law over definitions unfavourable to violation of law, the process itself being described as differential association. Such differential association will be affected by variations in frequency, duration, priority, and intensity. Sutherland supposed the learning of criminal behaviour to involve all the social and psychological mechanisms at work in other learning. Finally he claimed that although criminal behaviour is an expression of general needs and values, it is not explained by those general needs and values because non-criminal behaviour is also an expression of those same needs and values. [3] 

Finally the social disorganization theory(Chicago school) will clear the whole concept of deviance and delinquencies. Anthropology, the science of man has been mainly concerned with the study of primitive peoples. But civilized man is quite as interesting an object of investigation, and at the same time his life is more open to observation and study. Urban life and culture are more varied, subtle and complicated, but the fundamental motives are in both instances the same. Most sociology departments are inattentive to the physical and social contexts in which they exist. But the Chicago sociology was to become the sociology of Chicago itself, a detailed anthropological mapping of the social territories that made the city. [4] Urban life resembled a phantasmagoria, a welter of shifting scenes and identities; where everything is in a state of agitation – everything seems to be undergoing a change. Society is, apparently, not much more than a congeries and constellation of social atoms. They maintained that knowledge resided neither in properties of the world alone nor in properties of the observer alone. Facts, it was held, not self-evident. They are selected and interpreted by the mind that surveys them. People with different perspectives and different problems will not see exactly the same phenomena. Thus the meaning of food will not be identical for the chef, the waiter, and the guest at meal. It will shift in response to the peculiar dealings which one has with the object. But that shift is not wholly dependent on the whim of the contemplating intelligence. The imagination is not free to create anything which it may choose to devise. It is constrained by the capacity of the world to answer back and impose itself upon thought. [5] Hence it came about that pragmatism placed effective knowledge in a transaction between the observer and the environment which he observed: the knowledge was no longer defined as a state or as a condition but as a process, an action. It proceeded from experiences in the world. Experience was to become elevated to a pre-eminent position: it was a guarantee of valid knowledge. Formal speculation was regarded as a pallid and misleading substitute for personal acquaintance with phenomena. It is the personal experience of those best qualified in our circle of knowledge to have experience, to tell us what is. Now what does thinking about the experience of those persons come to, compared to directly and personally feeling it as they feel it? The philosophers are dealing in shades, while those who live and feel know truth. [6] The real world was the experience of actual man and women and not abbreviated and shorthand descriptions of it that we call knowledge. The business of research is to understand the social world, and the social world is itself manufactured by the practical experience of those who live in it. Practical experiences themselves are responses to situations and problems, and they change as those problems change. Sociology is not devoted to the study of states but of process, of things and people in change. It must be so organized that it can observe and report processes over time. It must also be so organized that it can reach those processes practically and not by surmise and logic alone. The most effective research strategy is one that requires sociologists to participate personally in the world which they would analyse. Without such participation, knowledge is not experience but an uncertain commentary on experience.

City life and urbanization were analysed by a collection of master forms which had been borrowed from biology. They were represented as the workings of an ecological order. Ecology is an emphasis on the patterns and organized changes which are produced by different species living together in the same physical territory. Whatever else men are, they are also animals, and as such they exhibit the effects of physical aggregation and of their habitat. [7] People are quite capable of detaching themselves from their own territories; they display rational behaviour; they can organise themselves into institutions which impose a distinct order; their works are modified by an elaborate technology; their activities are shaped by conscious planning; and they are governed by a symbolism which interprets and changes what they do. The city is not merely an artefact, but an organism. Its growth is, fundamentally and as a whole, natural, i.e. uncontrolled and un-designed. The forms it tends to assume are those which represent and correspond to the functions it is called upon to perform.

The emergence of Chicago itself was explained by what came to be known as the zonal hypothesis, the contention that cities evolve in a series of concentric zones of activity and life. At the very centre is the business district which is typified by a small residential population and high property values. About it is a zone of transition whose population is fluid and poor, whose housing is deteriorating and whose stability is threatened by the encroaching business district. About that zone, in turn, are areas of working-class housing, middle-class housing, and, on the fringes, suburbia. Each zone is itself composed of diverse ‘natural areas’ which abut on one another. They are natural because they are not entirely intended, because they manifest a rough correspondence to the territorial division of species in nature. It was found that there was massive concentration of ‘pathological behaviour’ in the zone in transition. Partly because of its great visibility, such behaviour appeared to be confined to a limited territorial belt. Within that belt there was a piling-up of all those phenomena that are conventionally identified as social problems: mental disorder, prostitution, suicide, alcoholism, infant mortality, juvenile delinquency, crime, disease and poverty. The incidence of pathology could be plotted with data collected from court records, census reports, and special surveys. Deviance may have been present elsewhere but it was hugely conspicuous in the transitional zone. The Zone in transition was taken to be unruly. It housed people who were unaccustomed to one another, to city life, and to America. Lacking substantial resources and deserting much that had been familiar, they were required to establish a way of life in a difficult and shifting environment. One of the prime problems which they faced was the sheer array of different worlds around them. When the inner composition and external relations of those worlds appeared unstable, the whole invited the description of social disorganisation. Disorganization was a face of moral dissensus: the degree to which the members of a society lose their common understandings, i.e. the degree to which consensus is undermined, is the measure of a society’s state of disorganization. [8] Disorganization also characterized the fragmented, the fluid, and the anonymous elements of urban life: contacts are extended, heterogeneous groups mingle, neighbourhoods disappear, and people, deprived of local and family ties, are forced to live under loose, transient and impersonal relations. [9] 

Integral to the conception of disorganization was the companion idea of weak social control. Those who stressed internal disorder could cite numerous obstructions to social control. Moral habits could not be properly implanted. People were neither effectively curbed, nor could they curb one another. They did not know each other well, formed few commitments to the area or to its population, were confused by moral diversity, and were loath to intervene in the affairs of their fellows. Morality could not be taken for granted. It became relativistic and circumstantial, readily adapted for selfish purposes, permitted the evolution of extenuating accounts. More particularly, its influence could not extend very far. Those entitled to exercise moral claims were confined to the family and immediate neighbours, all other becoming moral strangers. [10] Their lives had been punctuated by cultural discontinuities which became especially taxing for the second generation. Morally displaced, economically and politically peripheral, they might innovate new modes of social organization. Most typically they created a social order which corresponded to neither the old world nor the new but was a shifting amalgam of both. [11] They also improvised new styles of behaviour and morality which could well embrace delinquency as a possible solution to the dilemmas of exclusion and impotence. [12] Crime and delinquency were, thus, explained principally by the effects of the isolation of certain natural areas. They became a kind of surrogate social order, an alternative pattern, which replaced the workings of conventional institutions. [13] Their forms were themselves explained as a functional response to deprivation, to the social and moral structures imported by immigrants, and to the experience of growing up in the inner city. Deprived of political control and economic resources, first and second generation immigrants produced their own shadow politics and shadow economy.

Children raised in the crowded zone in transition led an intensely public life, playing with others on the street, forming into small groups which eventually crystallized into gangs. Such exposure placed the child under constant surveillance from others. From an early age he was awarded a communal identity and reputation. In an insecure social environment, the preservation of reputation acquired strategic importance. What is significant is the persistence of tradition in the zone in transition. Ideas of conduct are passed on from generation to generation of boys living the public lives of the street; traditions of delinquency are preserved and transmitted through the medium of social contact with the unsupervised play group and the more highly organized delinquent and criminal gangs. [14] 

Theories of punishment

Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions are nothing but the punishments. In primitive society punishment was left to the individuals wronged or their families, and was vindictive or retributive: in quantity and quality it would bear no special relation to the character or gravity of the offence.

Ordinarily there would arise the idea of proportionate punishment, of which the characteristic type is an eye for an eye. The second stage was punishment by individuals under the control of the state, or community; in the third stage, with the growth of law, the state took over the primitive function and provided itself with the machinery of justice for the maintenance of public order. Henceforward crimes are against the state, and the exaction of punishment by the wronged individual is illegal (compared to the earlier lynch law). Even at this stage the vindictive or retributive character of punishment remains, but gradually, and especially after the humanist government under thinkers like Beccaria and Jeremy Bentham, new theories began to emerge. Two chief trains of thought have combined in the condemnation of primitive theory and practice. On the one hand the retributive principle itself has been very largely superseded by the protective and the reformative; on the other punishments involving bodily pain have become objectional to the general sense of society. Consequently corporal and even capital punishment occupy a far less prominent position, and tend everywhere to disappear. It began to be recognized also that stereotyped punishments, such as belonging to penal codes, fail to take due account of the particular condition of an offence and the character and circumstances of the offender. A fixed fine, for example, operates very unequally on rich and poor.

With new criminological developments, particularly in the field of penology, it has been generally accepted that punishment must be in proportion to the gravity of the offence. It has been further suggested that reformation of criminal rather than his expulsion from society is more purposeful for his rehabilitation. With this aim in view, the modern penologists have focused their attention on individualization of offender through treatment methods. Today, old barbarous methods of punishment such as mutilation, branding, hanging, burning, stoning, flogging, amputation, starving the criminal to death or subjecting him to pillory or poetic punishment, etc. are completely abandoned [15] .

Pillory was a method of corporal punishment under which the offender was subjected to public ridicule by exposing him to punishment in public places. Different poetic punishments were provided for different crimes. For example, cutting off hands for theft, taking off tongue for the offence of perjury, emasculation for rape, shaving off the head of a woman in case she committed a sex-crime or whipping her in public street and similar other modes were common forms of poetic punishment during the middle ages. Modern penologists have substituted new forms of penal sanctions for the old methods of sentencing. The present modes of punishment commonly include imposition of monetary fines, segregation of the offender temporarily or permanently through imprisonment or externment or compensation by way of damages from the wrong-doer in case of civil injury. The credit for introducing these penological changes goes to eminent criminologists, like Beccaria, Garofalo, Ferri, Tarde, Bentham, and others who formulated sound principles of punishment and made all out efforts to ensure rehabilitation of offenders so as to make them useful member of society once again. Garofalo strongly recommended ‘transportation’ or ‘banishment’ of certain types of offenders who had to be segregated from society. Modern penal systems, however, limit the punishment of transportation within the homeland so that potentiality of prisoners is utilized within the country itself. Of late, open jails, parole or probation are being intensively used for long-termers so that they can earn their livelihood while in the institution. [16] 

Though opinions have differed, as regards punishment of offenders varying from age-old traditionalism to recent modernism, broadly speaking four types of views can be distinctly found to prevail. Modern penologists prefer to call them ‘theories of punishment’, which are,

The Deterrent theory;

The Retributive theory;

The Reformative theory; and

The Preventive theory.

Off late however, there has been the re-emergence of the Retributive theory in a diluted form and this is called as the Expiatory theory which was mainly in vogue in Ancient India and erstwhile Europe.

Deterrent theory

Earlier modes of punishment were, deterrent in nature. This kind of punishment presupposes infliction of severe penalties on offenders with a view to deterring them from committing crime.

The founder of this theory, Jeremy Bentham, based his theory of determine on the principle of hedonism which said that a man would be deterred from committing a crime if the punishment applied was swift, certain and severe. This theory considers punishment as an evil, but is necessary to maintain order in the society.

The deterrent theory also seeks to create some kind of fear in the mind of others by providing adequate penalty and exemplary punishment to offenders which keeps them away from criminality. Thus the rigor of penal discipline acts as a sufficient warning to offenders as also others. Therefore, deterrence is undoubtedly one of the effective policies which almost every penal system accepts despite the fact that it invariably fails in its practical application. Deterrence, as a measure of punishment particularly fails in case hardened criminals because the severity of punishment hardly has any effect on them. It also fails to deter ordinary criminals because many crimes are committed on the spur of the moment without any prior intention or design. The futility of deterrent punishment is evinced from the fact that quite a large number of hardened criminals return to prison soon after their release. They prefer to remain in prison rather than leading a free life in society. Thus the object underlying deterrent punishment is unquestionably defeated. This view finds support from the fact that when capital punishment was being publicly awarded by hanging the person to death in public places, many persons committed crimes of pick-pocketing, theft, assault or even murder in those men-packed gatherings despite the ghastly scene.

Suffice it to say that the doctrine concerning deterrent punishment has been closely associated with the primitive theories of crime and criminal responsibility. In earlier times, crime was attributed to the influence of ‘evil spirit’ or ‘free-will’ of the offender. So the society preferred severe and deterrent punishment for the offender for his act of voluntary perversity which was believed to be a challenge to God or religion. [17] 

The punishment ought to be a terror to evil-doers and an awful warning to all others who might be tempted to imitate them. This contention finds support in Bentham’s observation, who said:-

“General prevention ought to be the chief end of punishment…. An unpunished crime leaves the path of crime open, not only to the same delinquent but also to all those who may have some motives and opportunities for entering upon it…… we perceive that punishment inflicted on the individual becomes source of security for all……Punishment is not to be regarded as an act of wrath or vengeance against a guilty individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the society.”

Bentham, however, believed that offenders must be provided an opportunity for reformation by the process of rehabilitation. From this point of view, his theory may be considered forward looking as it was more concerned with the consequences of punishment rather than the wrong done, which being a post, cannot be altered. [18] 

Retributive Theory

Retribution is the practice of “getting even” with a wrongdoer—-the suffering of the wrongdoer is seen as good in itself, even if it has no other benefits. One reason for societies to include this judicial element is to diminish the perceived need for street justice, blood revenge and vigilantism. Retribution sets an important standard on punishment— the transgressor must get what he deserves, but no more. Therefore, a thief put to death is not retribution; a murderer put to death is. In old times when a man injured another, it was considered to be the right of the injured person to take revenge on the person causing injury. Since the formulation of the Hammurabi’s Code, “an eye for an eye and a tooth for a tooth” has been accepted by the general public that is the criminal deserves to suffer. Later this stance changed, Adam Smith, who is credited as the father of Welfare Economics, wrote extensively about punishment. In his view, an important reason for punishment is not only deterrence, but also satisfying the resentment of the victim. Moreover, in the case of the death penalty, the retribution goes to the dead victim, not his family.

One great difficulty of this approach is that of judging exactly what it is that the transgressor ‘deserves’. For instance, it may be retribution to put a thief to death if he steals a family’s only means of livelihood; conversely, mitigating circumstances may lead to the conclusion that the execution of a murderer is not retribution.

The adherents of retributive theory, that punishment satisfies the feeling of revenge, are few in number. As has been observed by Lee, “An act which is described as a crime today was looked upon as a private wrong previously. The wronged party and not the State or that which stood for the State brought suit”. Professor Gillin [19] quotes many illustrations of the working of private vengeance. Citing an instance of punishment for adultery in ancient Germany he observers: Its punishment is instant and at the pleasure of the husband. He cuts off the hair of the offender, strips her and in the presence of her relations expels her from the house and pursues her with strips though the whole village.

Salmond as regards the theory observes: Conception of retributive justice still retains a prominent place in popular thought. It flourishes also in the writings of the theologians and of those imbued with theological modes of thought and even among the philosophers it does not lack advocates. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake or any benefit to be derived from it either by the criminal himself or by the society and that the sole and sufficient reasons and justification of it lies in the fact that evil has been done to him who suffers it.

The death sentence has been used as an effective weapon of retributive justice for centuries. The justification advanced is that it is lawful to forfeit the life of a person who takes away another’s life. A person who kills another must be eliminated from the society and, therefore, fully merits his execution. [20] On the same lines, in the case of the Chopra children murder case where the Hon’ble Supreme Court while upholding the death sentence observed as follows: “The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing soc