Theories of Punishment

Each society has its own way of social control for which laws are framed and punishments attached.

Punishments in whatever form is characterized by the deprivation of certain normally recognized rights, or other measures considered unpleasant. It is also a consequence for an offence and it is applied against the author of the offence.

Punishments are legitimate and effective when it is meted out pursuant to existent unambiguous and generally accepted regulations. Additionally, punishments must be compliant to laid down procedures that is, what punishment should be meted to what offence and how it should be carried out. Significantly, punishments must commensurate the offence committed. For example, murder calls for imprisonment or a death penalty. A simple assault and battery with no serious injuries is usually punished with a short jail sentence or probation and a fine (the case of Abu and Others vrs the Republic referred).

Punishments during ancient times were more severe as fear was taken as the prime instrument in preventing crime. But with change in time and development of human mind the punishment theories have become more tolerant to these criminals. K. Baier explains punishment as law-making, penalization, finding guilty and pronouncing a sentence. In a legal context law-making is a necessary condition, but it is possible to commit a wrongdoing intentionally although no law has been made, in fact it is because certain acts are considered wrong that laws are made in the first place.

Two schools of thought support the reasoning behind meting out punishments to offenders of the law including: Utilitarian and Retributive theories. While the utilitarian theory of punishment seeks to punish offenders to discourage, or "deter" future wrongdoing, the retributive theory seeks to punish offenders because they deserve to be punished.

Utilitarian philosophers argue that laws should be designed to maximize the happiness of society and to serve the greater good. According to them, because crime and punishment are inconsistent with happiness, they should be kept to a minimum. Utilitarians understand that since a crime-free society does not exist, a quest to inflict punishment must be to merit offence, purposed at preventing future re occurrence.

The utilitarian theory recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. An illustration of punishment in this regard is the release of a prison inmate suffering from a debilitating illness. If the prisoner's death is imminent, society is not served by his continued confinement because he is no longer capable of committing crimes. In the case of Republic v. Rolt (1966) Crim L.R. 562, a man of 34 years with a long series of convictions was convicted of house-breaking and stealing properties worth 28pounds. He was sentenced to two years imprisonment. On receiving a report from the probation officer that the appellant would respond to probation, the court of appeal varied the sentence to a probation order.

Utilitarian philosophers believe that specific punishment for criminal conduct should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General deterrence means that the punishment should prevent other people from committing criminal acts. Specific deterrence on the other hand means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating the criminal behavior.

Utilitarian rationale for punishment aims at rehabilitation to prevent future crime by giving offenders the ability to succeed within the confines of the law. Rehabilitative measures for criminal offenders usually include treatment for afflictions such as mental illness, chemical dependency, and chronic violent behavior. Rehabilitation also includes the use of educational programs that give offenders the knowledge and skills needed to compete in the job market.

The retributive theory dictates that offenders be punished for criminal behavior because they deserve punishment. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance. Law is regarded the string that binds society, and he who attempts to break the string is a danger to the society as a whole and must be punished sternly by the powerful arms of the law.

The retributive theory focuses on the crime itself as the reason for imposing punishment. Whiles utilitarian theory anchors the essence of punishment on social benefits, the retributive theory looks at transgression as the basis for punishment.

According to retributive philosophers, human beings are free and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. However, a person who makes a conscious choice to upset the balance of society should be punished.

To many retributivists, punishment is justified as a form of vengeance thus wrongdoers should be forced to suffer because they have forced others to suffer. This ancient principle was expressed succinctly in the Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in his neighbor. it shall be done to him, fracture for fracture, eye for eye, tooth for tooth…." Punishment is vital to the retributist because it makes the wrongdoer pay a debt to society for the ills committed and to theoretically free him off guilt and stigma.

Another rationale for punishment is denunciation. Here, punishment should be an expression of societal condemnation. The denunciation theory blends the utilitarian and retributive philosophies. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. It is likewise retributive because it promotes the idea that offenders deserve to be punished.

While punishment in the United States is mostly based on retribution or expiatory theories, punishment in many African Countries is anchored on the ideals of deterrence.

Punishment may combine utilitarian ideals with that of retribution. An offender of the law may be given custodial sentence to quench the public's thirst for vengeance. At the same time, educational programs inside the prison reflect the utilitarian goal of rehabilitation.

Generally, punishment can be used as a method of reducing the incidence of criminal behavior either by deterring potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. It is said that the enactment of any law brings about two units in the society, the law-abiders and the law-breakers. The purpose of these theories of punishment seeks to by any means transform or change these law-breakers to the group of abiders.

Punishment, whether legal or divine, needs justification because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians.

Notwithstanding the two grand philosophies of punishment, a blend of the retributive and utilitarian ideals is optimum towards reshaping society.

In conclusion, I quote Justice Taylor in the case of Abu and Other v. the Republic. “In imposing sentence, it seems to me that the court has a duty to consider all aggravating and mitigating circumstances. The appellants are aged as follows: first appellant 37 years second appellant 38 years, third appellant 40 years and fourth appellant 42 years and as I have said they are first offenders. They are clearly not young persons. As first offenders, my reaction is to take a lenient look”. The appeal of the sentences of the offenders of the law was varied in accordance with the extent that each of the accused persons participated in the offence.