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Rishav Sen

Professor Nisha Nair

English II [L-CA-0007]

5th April 2019

Theories of Punishment

Criminal law is a body of law that deals with prohibited actions in society. When leaders of

government or state act to outlaw certain actions, they come under crimes. Criminal law tries

to protect the members of society from such crimes and aims to prevent harm. Once a crime

has been committed, the state through various provisions of the criminal law tries to ensure

justice for the aggrieved party. So as to ensure justice, we have a branch of philosophy called

theories of criminal justice which deals with notions of justice and punishment. How society

punishes its criminals is extremely important. In modern society, citizens find it legitimate to

accept the authority of the state since they safeguard their basic rights. However, if the state is

unable to protect its people from crimes which severely infringe upon their right to life, it

loses its legitimacy in the eyes of the people. There are two primary theories of punishment in

this context, the deterrence theory, and retributivism. Right now, deterrence theory is the

philosophy that is widely followed in most legal systems across the world. However, owing

to the increasing number of criminal cases on individuals, backed by empirical evidence

coupled by its weak moral foundations, the deterrence theory has been slowly losing ground

as the primary theory of punishment in modern society. Therefore, criminal law shaped by
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retributive theories of punishment and justice is the way forward. One of the classics of all

time-Crime and Punishment backs straightforward retributive philosophy of punishment.

The aim of criminal law is not to recompense, to rehabilitate or to instil virtues and

morals. Rather, its primary motive is to prevent harm (Alexander et al. 3). One way of

preventing harm is to try to increase the difficulty of causing harm to other people. The

second strategy is to impose a penalty on those who attempt or succeed at causing harm to

others. This would increase the risk associated with a crime and make it look less appealing

to a potential offender. Here the strategy is one of deterrence through prospective

penalization (Alexander et al. 4). These two preventive principles are at the heart of what we

know as the deterrence theory of punishment. Deterrence theory advocates for a punitive

action which is not commensurate to the desert of a person and is much higher in order to

discourage the offender and others from committing the crime again. In the context of

criminal law, desert refers to the due recompense of a person for committing a crime. It is

derived from the old French verb, deserver, to deserve. According to the concept of desert,

that which deserves reward or punishment must receive its due reward or compensation

whether it is good or evil. Since desert in criminal law usually deals with punishment rather

than reward, it is the deserved punishment for the defendant’s crime (Alexander et al. 4).

However, the deterrence theory has been subjected to several criticisms in recent

times. Deterrence theory is based on the rational actor model which suggests that people

make conscious rational choices and make a cost-benefit analysis while committing a crime

wherein a person commits a crime only when the benefits for him/her outweigh the costs

associated with committing the crime. However, this model is criticized based on the

observation that certain crimes are spontaneous and highly emotional in nature. Thus, a

person having strong emotional motives behind committing a crime is unlikely to be deterred

by the sanctions associated with it. Critics of the deterrence theory point towards the high
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instances of recidivism, which is people relapsing into committing a crime once they have

served their punishment, and the increasing number of criminal cases as evidence of the fact

that the deterrence theory has failed to serve its purpose of preventing harm. Research has

shown that released prisoners have a high likelihood of relapsing into crime and facing

reincarceration. The most recent large scale study on recidivism conducted in the US found

that two-thirds of the prisoners released in 1994 relapsed into crime within a period of three

years and around one quarter were further reincarcerated. A more recent state-level study

conducted in 2010 found that 22% of a sample of released offenders were reincarcerated

within a span of one year (Stahler et al. 1). As per quarterly reports released by the police

forces on January 2018, knife crime had increased by 21% and gun crimes had gone up by

20% in England and Wales. According to police chiefs, the increases included a 32% rise in

domestic burglary to 261,965 offences and an 18% increase in vehicle-related crimes,

alongside a sharp rise in violent crimes (Travis 1). Thus, statistical data point towards the fact

that the deterrence theory hasn’t been able to bring down rates of recidivism and crime over a

prolonged period of time. The deterrence theory also does not have a sound moral foundation.

When we impose harsh treatment with the sole purpose of deterrence, there is no necessary

connection between the offender’s desert and the penalty imposed on him. In fact, since the

penalty imposed failed to deter at least one person, that is the offender, the crime in question

should have warranted a higher penalty. Thus, from a pure deterrence viewpoint, the ideal

punishment is one so draconian that it achieves cent percent deterrence and hence it never has

to be imposed (Alexander et al. 5). However, such a punishment has no place in modern

society due to the strict moral compass of its citizens and the importance given to human

rights of every individual including criminals.

The alternative to the two ways of preventing harm which was discussed before is to

instil values that are meant to guide people’s choices. These values inform people about the
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reasons that should govern their choices, and the inculcation of such norms involves as its

corollary the inculcation of reactive attitudes towards those who comply with and those who

violate those norms (Alexander et al. 6). This is the underlying principle behind retributive

theories of punishment and justice. Retributivism advocates for the award of punishment

which is proportional to the offence committed, and imposed because the offender deserves

it. Retributivism is based on the two core principles of proportionality and desert which are

somewhat interlinked. Retributivism argues that the punishment for a crime must be

proportional to the crime committed as well as the degree of desert. Let us consider an

example where X has committed the crime of murder by killing a person. In such a scenario,

X would be causally and morally responsible for the person’s death. However, if X

committed the act in self-defence, he would be causally responsible for the person’s death but

not morally. In this context, desert can be understood as an unfair advantage gained by a

person while committing a crime. When a person acts to save his life and in the process kills

another person, he would gain no such unfair advantage and there would be no desert on his

part. Therefore, the punishment for X in the second case would be lesser or might not even be

awarded due to the absence of desert on the part of X. However, deterrence theory would

make no such distinctions between the two cases since it does not recognise the concept of

desert (Mohanty 1). Analysing such a hypothetical situation through the lens of retributive

and deterrence theories of punishment also gives further credence to the arguments in support

of the weak moral foundations of the deterrence theory.

Retributivism enjoys other advantages over the deterrence theory too. Retributive

justice aims at delivering punishment to only those who deserve it. This ensures that an

innocent person can never be punished unlike what might happen in a state following a policy

of deterrence. A purely deterrent theory of punishment has a moral fallibility where it would

justify punishing a person as long as he’s considered to be guilty by a majority of the

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population without taking the required steps to determine his/her innocence. This is because

punishing a person who’s been deemed to be guilty in the public eye would have an equal

deterrent effect on society compared to a person who has actually committed a crime. Due to

this reason, the above deliberations are kept in mind in order to include some retributive

aspects to the theory of deterrence. “The sentence of the law is to the moral sentiment of the

public in relation to any offence is what a seal is to hot wax. It converts into a permanent final

judgment what might otherwise be a transient sentiment.” The above statement made by

philosopher and scholar, Sir James Stephen lends credence to the argument that a just

punishment sends out a strong message to society. The concept of punishment as a form of

denunciation for the criminal and his actions has been envisaged by scholars like Hampton

and Morris alongside Sir James Stephens. According to British philosopher HLA Hart,

punishment should not be just for the purpose of denunciation, however a deserved

punishment does serve as denunciation for a crime (Mohanty 3).

Crime and Punishment written by Fyodor Dostoevsky is one of the all-time classics of

English literature. The story focuses on the character of Rodion Raskolnikov, a penurious ex-

student of law in Saint Petersburg who devises a plan to kill a wealthy but immoral

pawnbroker for her money. Before he goes forward with the killing, Raskolnikov tries to

justify his actions by convincing himself that he would go ahead and perform great deeds

with the money. Thus, his actions would be for the benefit of the world at large. However,

once he commits the act of murder, he finds himself disillusioned and tormented with

paranoia and disgust at his actions. His moral compass, which previously allowed him to

justify his actions, disintegrates completely in the aftermath of the crime as he struggles to

deal with the consequences of what he has done (Dostoevsky 50). One of the distinctive

features about the story is the fact that it focuses on finding the motive for the crime and not

the killer since it is already revealed in Part 1 of the novel. The concept of motive determined
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by moral and causal reasons for committing the crime is central to the idea of retributivism

and it helps in deciding the desert of the offender. In Crime and Punishment, Raskolnikov

adopts a utilitarian worldview and tries to justify his actions by believing that it would lead to

the greater good for a larger number of people who were driven to poverty by the

unscrupulous pawnbroker. However, the state does not recognise utilitarianism that is

harming others for the greater good as a justification for committing a crime. This is because

such a principal would go against the normative understanding of justice adopted by society

at large, that is the right to life, liberty, and property of every person is sacred and must be

protected at all costs. Thus, Raskolnikov’s moral reasoning for his actions was terribly flawed

and went against the norms of justice laid down by society at large. Therefore, Raskolnikov

was subjected to eight years of penal servitude once he confessed to his crime which was

proportional to his desert and was hence concurrent with a retributive philosophy of

punishment.

The large number of criticisms faced by the deterrence theory of punishment is slowly

starting to tilt the scales in favour of societies transitioning towards retributive norms of

justice. The statistical data provided in support of recidivism and those regarding the change

in rate of crimes over a prolonged period in societies practicing a policy of deterrence point

towards the undeniable conclusion that such a form of punishment hasn’t been able to deter

people from committing crimes which was its primary objective in the first place. For states

looking to move towards a retributive approach to punishment, they need not look further

than international bodies like the International Criminal Court and International Crime

Tribunals which have unequivocally been in support of retribution as a means of punishment

for perpetrators of state crime. These bodies work based on the principle that punishment

must be delivered to individuals who break international and national laws since they deserve

to be punished and such punishment must be proportional to the desert of the offender.
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Therefore, criminal law shaped by retributive theories of punishment and justice is the way

forward for modern societies.

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Works Cited

Alexander, Larry and Kimberley Ferzan. Crime and Culpability. USA: Cambridge University

Press, 2009.

Dostoyevsky, Fyodor, Richard Pevear, and Larissa Volokhonsky. Crime and Punishment: A

Novel in Six Parts with Epilogue. New York: Knopf, 1992.

Stahler, Gerald J, et al. “PREDICTING RECIDIVISM FOR RELEASED STATE PRISON

OFFENDERS: Examining the Influence of Individual and Neighbourhood Characteristics

and Spatial Contagion on the Likelihood of Reincarceration.” Criminal Justice and

Behaviour, U.S. National Library of Medicine, 1 June 2013,

www.ncbi.nlm.nih.gov/pmc/articles/PMC3891510/.

Travis, Alan. “Rise in Recorded Crime Is Accelerating in England and Wales.” The

Guardian, Guardian News and Media, 25 Jan. 2018, www.theguardian.com/uk-

news/2018/jan/25/knife-and-gun-rises-sharply-in-england-and-wales.

Mohanty, Abhishek. “Retributive Theory of Punishment: A Critical Analysis.” Academike,

15 Jan. 2015, www.lawctopus.com/academike/retributive-theory-of-punishment-a-critical-

analysis/.