PUNISHMENT, DEATH PENALTY AND RESTORATIVE JUSTICE

PUNISHMENT

 Punishment is the infliction of penalty as retribution for an offense.

 It is being imposed for the transgression of law.
 The infliction of any pain, penalty, forfeiture or confinement imposed by the court for a wrong
doing.
 It is a means of social control.
 It is a device to cause people to become cohesive and to induce conformity.
Penology is a sub-component of criminology that deals with the philosophy and practice of various
societies in their attempts to repress criminal activities and satisfy public opinion through an appropriate
treatment for persons convicted of crime.
Correction is that branch of the administration of criminal justice charged with the responsibility for the
custody, supervision and rehabilitation of convicted persons. It is in the view of reorientation or re-
instruction of the individual with a purpose of preventing a repetition of the unlawful activities without
necessity of taking punitive action.
Schools of thought in Penology
1. Pre-classical school
a. Secular theory – man has always been assailed with the effort of solving the crime committed in his
midst rather than seeking an explanation for the occurrence of the crime.
b. Judean-Christian theory – punishment has a redemptive purpose of repelling sin advocated by the
devil.
c. Rise of canonical courts - In the Middle Ages, canon law was used in ecclesiastical courts (church)
to decide many types of cases that in modern times are decided by civil courts, including criminal
offenses. This was because most English Christians did not make a great distinction between secular
and spiritual offenses.
d. Individualization of punishment – lawmakers and judges are tasked in making and administering
law not only in light of theories of free will and responsibility, but also to face to face with the
indignation of the community at a particular offense.
e. Abuse of judicial individualization – the law gave judges wide discretion to impose additional
penalties in view of the circumstances.
2. Classical school – it came about as a protest against the abuses of discretionary power of judges.
3. Neo-classical school – the judge was given discretion in certain crimes to vary punishments between
the maximum and minimum fixed by law.
Contributions of Neo-classical School
Exempting circumstance
Reduction of punishment for partial freedom of will
Punishment mitigated for lack of full responsibility
4. Positivist School – It defined individual responsibility and reflected and essentially non-punitive
reaction to crime and criminality. Since the criminal was held to be not responsible for his acts, he
was not punished.
5. Modern Clinical School – it studies the criminal rather than the crime. It is primarily interested in
the personality of the criminal himself in order to determine the conditioning circumstance that
 explain his criminality and in order to obtain light upon the problem of how he should be handled by
the group.
Ancient forms of punishment (Primitive Society)
1. Death penalty – hanging, burning, feeding to wild animals
2. Corporal punishment (physical torture) – flogging, mutilation, disfigurement and maiming.
3. Public humiliation and shaming – the purpose of this was to put the offender to shame, this was
affected by the use of stocks and pillory, docking stool, branding, shaving off hair, etc.
4. Banishment – this was carried out by prohibiting the offender from going to a specified territory
or a prohibition against going outside a specified territory.
Contemporary forms of punishment
1. Imprisonment
2. Parole
3. Probation
4. Payment of fine
5. Community service
Justification of punishment
1. Retribution -personal vengeance
2. Expiation or atonement – group vengeance
3. Deterrence of exemplarity
4. Protection/social defense
5. Reformation
Theories justifying imposition of penalty
1. Prevention theory – to prevent or suppress the danger to the state arising from the criminal acts
of the offender
2. Self-defense theory – to protect society from the threat and wrong inflicted by the criminal
3. Reformation theory – to correct and reform the offenders
4. Exemplary theory- To serve as an example and deter others from committing crimes
5. Justice theory – as an act of retributive justice or vindication of an absolute right and moral law
violated by the criminal.

Classification of Penalties under the Revised Penal Code

1. Principal Penalties

a. Capital punishment: Death.

b. Afflictive penalties:

Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.
 c. Correctional penalties:

Prision correccional,
Arresto mayor,
Suspension,
Destierro.

d. Light penalties:

Arresto menor,
Public censure.

e. Penalties common to the three preceding classes:

Fine, and
Bond to keep the peace.

2. Accessory Penalties

a. Perpetual or temporary absolute disqualification,

b. Perpetual or temporary special disqualification,

c. Suspension from public office, the right to vote and be voted for, the profession or calling.

d. Civil interdiction,

e. Indemnification,

f. Forfeiture or confiscation of instruments and proceeds of the offense,

g. Payment of costs.

Death penalty

On June 24, 2006, RA 9346 was enacted prohibiting the imposition of death penalty leading to the stoppage of
the execution of the death convicts.

In lieu of the death penalty, the following shall be imposed.

a. Reclusion Perpetua

b. Life imprisonment

Crimes are considered heinous, for being grievous, odious and hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and ordered society.

RA 7659 enumerated heinous crimes as follows:

 a. Treason

b. Qualified piracy

c. Qualified bribery

d. Parricide

e. Murder

f. Infanticide

g. Kidnapping and serious illegal detention

h. Robbery with violence against or intimidation of persons.

i. Destructive arson

j. Rape

k. Plunder

l. Violation of RA 9165

RESTORATIVE JUSTICE

Restorative justice is not as concerned with punishment or retribution, but rather in making the victim “whole”
and reintegrating the offender back to society.

Restorative Justice is a process through which remorseful offenders accept responsibility for their misconduct,
particularly to their victims and to the community. It creates obligation to make things right through proactive
involvement of victims, ownership of the offender of the crime and the community in search for solutions
which promote repair, reconciliation and reassurance. Thus, the restorative justice process is actively
participated in by the victim, the offender, and/or any individual or community member affected by the crime
to resolve conflicts resulting from the criminal offense, often with the help of a fair and impartial third party.

Restorative justice is an approach to justice in which the response toa crime is to organize a meeting between
the victim and the offender – sometimes with the representatives of the community.

The goal is for them to share their experience of what happened, discuss who was harmed and how, and to
create a consensus for what the offender can do to repair the harm from the offense

Restorative justice insists to repair the injuries suffered by the people or community and for parties to
participate in the process. Therefore, parties are given direct involvement in responding to crime.

DIFFERENCE OF RESTORATIVE JUSTICE FROM RETRIBUTIVE JUSTICE

As to approach:
Restorative is focused on determining the harm resulting from crime, what needs to be done to repair the harm,
and who is responsible in repairing the harm. While retributive is focused on determining what law was
broken, who broke it and how they should be punished.

As to whom the act was done:

Restorative view crime as an act against another person and the community while retributive view crime as an
act against the State and a violation of law.

As to whom controls/facilitates the process:

In restorative, the community facilitates the restorative process, while in retributive the criminal justice system
facilitates the process.

As to accountability:

In restorative, it views crime as an accountability by both the individual and society. Here punishment is not an
effective means of changing behavior, while in retributive, it views crime as an individual act and individual
responsibility to be borne by the offender by punishment in order to deter crime and change behavior.