Criminal Law:

Theories of Punishment

INTRODUCTION:
● These are the rules of law which stipulate when a person is guilty of a crime.
● Theories of punishment seek to answer the question as to the justification of punishment
but also what punishment must be imposed for each case

ABSOLUTE AND RELATIVE THEORIES:

● There is only one absolute theory (retributive theory), whereas there are many relative
theories
● ​Absolute theory says that punishment is an end to itself
○ Absolute theory looks at the past
● The relative theory/ Utilitarian means the punishment is a second end or purpose
○ ​Looks to the future

RETRIBUTIVE THEORY:
● ​Retribution restores the legal balance that has been disturbed the crimes
○ Punishment is a payment, you owe society
● The legal order offers everyone as an advantage as the law protects people and
prohibits other people from infringing upon your basic rights
○ This advantage comes with a responsibility to refrain from injuring another’s
rights or interests
● If everyone exercises the required self-restraints the two scales of justice are evenly
balanced. Advantages and disadvantages are evenly distributed
● By being given a punishment and by serving such punishment you pay your debt to
society – the two scales of justice become balanced again.
● Retribution doesn’t mean vengeance
○ It might have been in primitive societies, but modern societies have a more
enlightened meaning (restoring the legal balance)
● The extent of the punishment must be proportionate to the extent of the harm done or of
the violation of the law - just desert
○ The less the harm, the less the punishment
○ This reveals retributions linked with the principle of equality.
● Retribution respects freedom of will and explains necessity of culpability requirement
○ The retributive theory operates within an indeterministic construction of society.
Meaning man has free will
○ Free people can be helped responsible for their choices, they can be fairly
blamed and their punishment in their just desert
■ The Unitarian modal says the culprit can’t be blamed for acting in a way
because it was not a result of free choice but rather outside forces
● ​Retribution respects human dignity
○ The culprits punished is founded upon his own free choice
Appeasement of society: Revenge?
● Oldest justification of punishment
● This punishment satisfies indignation of the wronged person
● Problems:
○ Can they explain satisfaction if victim doesn’t desire vengeance?
○ Should victim b consulted to determine what punishment would satisfy their
revenge?
● Good Points
○ Demand for revenge is satisfies
○ Public don’t lose respect for the law
○ People won’t view it as necessary to enact private revenge

PREVENTIVE THEORY:
● ​Purpose of punishment is to prevent crime
● This theory can overlap with the deterrent and reformative theories
● Closely linked with the view that the purpose of punishment is to protect society.
● The success depends on the court's ability to establish beforehand which accused are
so dangerous they should be permanently removed from society.
○ However, this is often difficult for courts to do
○ A culprit’s previous convictions can help, if he has a habit of committing crimes
the court may take this into account and sentence him for longer to prevent him
from committing crimes again.

THEORY OF INDIVIDUAL DETERRENCE:

● The offender as an individual is deterred from the commission of further crimes
● The idea is to teach the individual a lesson which will deter him from committing crimes
in the future
● ​The high recidivism rate in our country (nearly 90%) suggests that is theory is not very
effective

THEORY OF GENERAL DETERRENCE:

● The whole community is deterred from committing crimes
● ​It is the belief that the punishment sends out a message to society that crime will be
punished and therefore members of society will fear that crime because of the
punishment
● The theory is successful only if there is a reasonable certainty that an offender will be
traced by the police, the prosecution of the crime in court will be effective and result in
convection
● ​If these are not upheld, then possible offenders will think it’s worth taking a chance.
● There are points of criticism against this theory:
○ It assumes that man prefers the painless to the painful and that he is a rational
human being
○ The basic premise is that the average person is deterred from committing a crime
by the punishment imposes on others, can’t be proved
○ The requirements of culpability can’t readily be explained by merely this theory
 ○ It is possible the offender will be punished with much harsher sentences then
needed as the court wants it to deter others. One individual is sacrificed for the
sake of the community – person regarded as an instrument

THE REFORMATIVE THEORY

● The purpose of punishment is to reform the offender as a person so that he may become
a member of the community again
● Focus is on the person and personality of the offender
● The recent growth is sociological and psychological sciences have largely contributed to
the creation of this theory
● Some points of criticism are:
○ The theory doesn’t provide for punishment to be proportionate to the harm
inflicted
○ Difficult to be certain beforehand how long it will take to reform the offender
○ Only effective if the offenders are relatively young - need to break habits
○ Rehabilitation is often more of an ideal than a reality. High percentage of
recidivism proves this
○ It is not necessary to wait for a person to commit the crime before you can reform
them
● Because of overpopulation in prisons as well as lack of sufficient funds for expensive
treatment programmes, we aren’t sure if it will be a success in SA.

COMBINATION THEORY:
● Courts rarely use just one theory when making a decision. They use elements of all
theories which we group into the combination theory
● Retribution forms the backbone of the court's approach to punishment
○ It is the only theory where there must be a proportional relationship between
punishment and moral blameworthiness of the offender
● Theory uses 4 main consideration to be taken into account when a sentence is imposes
○ The crime:​ ​Consideration to the degree of harm or seriousness of the violation
(retributive theory)
○ The criminal:​ ​personal circumstances of the offender, personal reasons which
drove him to the crime and the prospects of one-day rejoining society
(reformative theory)
○ Interests of society:​ ​Either society must be protected from danger (preventive
theory) or that the community must be deterred from crime (theory of general
deterrence)
○ The victim:​ ​Taking into account the interest of the victim (only recently added in
2011 as something to consider)

Application of punishment theories:

● Suspens sentence - allows the offender to perform a period of probation
● Community service
● Fine
● imprisonment
Take into account:
● Seriousness of offence
● Interest of community
● Personal circumstances of the accused