Theories and Forms of

Punishment
Penology
• Penology, also called Penal Science, is the
division of criminology that concerns itself with
the philosophy and practice of society in its
efforts to repress criminal activities.
• Penology is derived from the Latin word poena,
“pain,” or “suffering”.
• Greek term – PIONE – Penalty
• Penology is the study of punishment for crime
or of criminal offenders. It includes the study of
control and prevention of crime through
punishment of criminal offenders.
 • The first two basic questions which should be
given priority while discussing punishment are-
. What is punishment?
• and What is the justification of punishment?

• Then follows a set of similar questions:

• what is proper punishment?
• Is criminal or the society the ultimate aim of
punishment?
• Why punishment at all?
• Penology has stood in the past and, for
the most part, still stands for the policy of
inflicting punishment on the offender as a
consequence of his wrongdoing; but it
may reasonably be extended to cover
other policies, not punitive in character,
such as probation, medical treatment,
and education, aimed at the cure or
rehabilitation of the offender; and this is,
in fact, the accepted present sense of the
term.
• The aim of penology is to
• Bring to light the ethical bases of
punishment
• Motives and purposes of society in
inflicting the punishment
• Make a comparative study of penal laws
and procedures through history and
between nations;
• Evaluate the social consequences of the
policies in force at a given time.
• The word "penology“ is derived
from "punishment or penalty“.
• Penology is a science could be divided
into prevention science and treatment
science.
• The prevention science operates before the
commission of the crime, while the
treatment science takes place after the
occurrence of the crime to amend the
criminal and avoid his recidivism. And also
suggests the ideal methods of  prevention
and treatment, therefore it traces the ideal
criminal policy.
• Penology is "a substitute which we call
“science of struggle against criminality”
that means the ideal methods of
prevention and treatment as regards
criminality”
 Attitude towards Criminals
• There are distinctly three attitudes towards criminals
on the basis of the society.
▫ Traditional – Punitive approach – Here the criminal is
considered to be bad and dangerous person and the object
of punishment is to protect the society from further such
occurrences.

▫ Criminal as victim of circumstance and the product of

various factors within the criminal and society. Criminal is a
sick person who needs treatment and is termed as the
therapeutic approach.

▫ Preventive approach- it tries to eliminate the conditions

responsible for crime causation
• Jerome Hall states punishment inflicting pain
should be coercive and it is inflicted in the
name of the state. And it is inflicted on a
person who is an offender who has committed
a criminal wrong
• Benn and Flew gives the elements of
punishment as follows:
▫ Punishment must involve pain and its consequences
must normally be considered as unpleasant
▫ It must be for any legal criminal wrong
▫ Given to the actual offender who has committed the
offence
▫ Pain must be inflicted by the authority which has
been constituted by the legal system
Punishment
• Punishment, according to the dictionary,
involves the infliction of pain or forfeiture, it is
the infliction of a penalty, chastisement or
castigation by the judicial arm of the State.
• But if the sole purpose of punishment is to cause
physical pain to the wrong-doer, it serves little
purpose.

• However, if punishment is such as makes the

offender realize the gravity of the offence
committed by him, and to repent and atone for it
(thus neutralizing the effect of his wrongful act),
it may be said to have achieved its desired effect.
• A person is said to be "punished" when some pain
or detriment is inflicted on him. This may range
from the death penalty to a token fine.

• Walter Reckless describes punishment as "the

redress that the commonwealth takes against an
offending member."
• In the words of Westermarck, punishment is
"Such suffering as is inflicted upon the offender in
a definite way by, or in the name of the society of
which he is permanent or temporary member."
• Penalty – Is defined as the suffering inflicted by
the state against an offending member for the
transgression of Law.
Juridical Conditions of penalty:
Punishment must be:
1. Productive of Suffering –Affecting the integrity of
the human personality.
2. Commensurate with the offense – Different crimes
must be punished with different penalties.
3. Personal – The guilty one must be the one to be
punished, no proxy(Sec. 205 IPC).
4. Legal – The consequences must
be in accordance with the law.
5. Equal – Equal for all person.
6. Certain – No one must escape its
effects.
7. Correctional – Changes the
attitudes of offenders and become
law-abiding citizens.
Theories of Punishment
• Retributive Theory
• Deterrence Theory
• Preventive Theory
• Reformative Theory
• Expiation
Retributive Theory
• ...An eye for an eye would turn the whole world blind-
Mahatma Gandhi
• An eye for an eye philosophy of justice
under retributive theory of punishment.
-It generally requires harsh punishment
• Just Deserts -philosophy of punishments,
implying that offenders get what they deserve.

-Emphasizes the idea of penal censure of defendant.

Sees the punishment as being proportional to the
seriousness of the crime
• Here the concept is you hurt me, I hurt you
• The desire to make the offender suffer, is
only because he deserves the punishment
and not for deterring the offender or to
make him feel guilty.

• This theory underlines the idea of vengeance and

revenge rather than that of social welfare and
security
• The most stringent and harsh of all theories
retributive theory believes to end the crime in
itself.
 • The only reason for keeping the offender in
. prison under unpleasant circumstances would be
the vengeful pleasure of sufferer and his family.
• J.M.Finnis argues in favour of retributism by
mentioning it as a balance of fairness in the
distribution of advantages and disadvantages by
restraining his will.
• Traditional retributism relied on punishing the
intrinsic value of the offence and thus resort to
very harsh methods
• Sir Walter Moberly states that the punishment is
. deemed to give the men their dues.
• "Punishment serves to express and to satisfy the
righteous indignation which a healthy community treats
as transgression. As such it is an end in itself”.

• “Emmanuel Kant argues that retribution is not just a

necessary condition for punishment but also a sufficient
one. Punishment is an end in itself. Retribution could
also be said to be the 'natural' justification" ,
• in the sense that man thinks it quite natural and just
that a bad person ought to be punished and a good
person rewarded.
 • this theory closely related to that of expiation as
the pain inflicted compensates for the pleasure
. derived by the offender.

• fear still plays an important role in the minds of

various first time offenders. But the basis of this
theory i.e. vengeance is not expected in a
civilized society.

• This theory has been severely criticized by

modern day penologists and is redundant in the
present punishments
Deterrence Theory
• DETERRENCE – The theory of punishment which envisages
that potential offenders will refrain from committing crimes
out of fear of punishment.
• One of the primitive methods of punishments believes in the
fact that if severe punishments were inflicted on the offender
would deter him form repeating that crime.
• Those who commit a crime, it is assumed, derive a mental
satisfaction or a feeling of enjoyment in the act. To neutralize
this inclination of the mind, punishment inflicts equal
quantum of suffering on the offender so that it is no longer
attractive for him to carry out such committal of crimes.
 • Pleasure and pain are two physical feelings or
. sensation that nature has provided to mankind,
to enable him to do certain things or to desist
from certain things, or to undo wrong things
previously done by him.
• In social life punishment introduces the element
of 'pain' to correct the excess action of a person
carried out by the impulse (pleasure) of his mind.
• We all like very much to seize opportunities, but
abhor when we face threats. But in reality pain,
threat or challenges actually strengthens and
purifies a man and so an organization
• J. Bentham, as the founder of Deterrence Theory
.
• Bentham's theory was based on a hedonistic
conception of man and that man as such would be
deterred from crime if punishment were applied
swiftly, certainly, and severely.
• But being aware that punishment is an evil, he says, If
the evil of punishment exceeds the evil of the offence,
the punishment will be unprofitable; he will have
purchased exemption from one evil at the expense of
another.
• The basic idea of deterrence is to deter both offenders
and others from committing a similar offence
• A political philosophy and ethics developed by Jerome
Bentham and John Stuart Mill in the 19th century called
. Utilitarianism.
• It postulates human efforts towards "maximization of
pleasure and maximum minimization of pain" as the goal.
• "The main ethical imperative of utilitarianism is: the
greatest good for the largest number of people; or the
greatest number of goods for the greatest number of
people"
• The fear of consequent punishment at the hands of law
should act as a check from committing crimes by people.
• The law violator not merely gets punishment, but he has to
undergo an obnoxious process like arrest, production
before a magistrate, trial in a criminal court etc. that bring
about a social stigma to him as the accused.
2 Types of Deterrence
.
1. General deterrence: The offender is punished
to serve as an example to all others who may be
contemplating a similar offense

2. Specific or Individual deterrence: To prevent

the offender from re-offending
 Preventive Theory
• Unlike the former theories, this theory aims to prevent the crime
rather then avenging it.
• Looking at punishments from a more humane perspective it rests on
the fact that the need of a punishment for a crime arises out of mere
social needs i.e. while sending the criminals to the prisons the society
is in turn trying to prevent the offender from doing any other crime
and thus protecting the society from any anti-social element

• The public will protect, if the offender has being held

conditioning where he cannot harm others especially the public.
• Punishment is effective by placing offenders in prison so that
society will be ensured from further criminal depredations of
criminals.
 • Fitchte in order to explain this in greater details puts
forward the an illustration,
.• THAT IS “An owner of the land puts an notice that
‘trespassers’ would be prosecuted.”
• He does not want an actual trespasser and to have the
trouble and expense of setting the law in motion
against him.
• He hopes that the threat would render any such
action unnecessary; his aim is not to punish trespass
but to prevent it.
• But if trespass still takes place he undertakes
prosecution. Thus the instrument which he devised
originally consist of a general warning and not any
particular convictions.
• Thus it must be quite clear now by the illustration that
. the law aims at providing general threats but not
convictions at the beginning itself.
• Even utilitarian such as Bentham have also supported
this theory as it has been able to discourage the criminals
from doing a wrong and that also without performing
any severity on the criminals.
• The present day prisons are fallout of this theory. The preventive
theory can be explained in the context of imprisonment as
separating the criminals from the society and thus preventing any
further crime
• by that offender and also by putting certain restrictions on the
criminal it would prevent the criminal from committing any offence
in the future.
• Supporters of this theory may also take Capital Punishment to
. be a part of this theory.

• A serious and diligent rehabilitation program would succeed in

turning a high percentage of criminals away from a life of
crime.

• There are, however, many reasons why rehabilitation programs

are not commonly in effect in our prisons.
•
• Most politicians and a high proportion of the public do not
believe in rehabilitation as a desirable goal. The idea of
rehabilitation is considered mollycoddling.
• What they want is retribution, revenge, punishment and
suffering
 • Thus one an easily say that preventive theory
though aiming at preventing the crime to happen
. in the future.
• but it still has some aspects which are
questioned by the penologists as it contains in its
techniques which are quite harsh in nature.

• The major problem with these type of theories is

that they make the criminal more violent rather
than changing him to a better individual.
Reformative Theory
• It is the establishment of the usefulness and
responsibility of the offender. Society’s interest can
be better served by helping the prisoner to become
law abiding citizen and productive upon his return to
the community by requiring him to undergo intensive
program of rehabilitation in prison.
• Reformative Theory: is the beginning of a new
story--the story of the gradual Renewal of a man, the
story of his gradual regeneration, of his Passing from
one world into another, of his initiation into a new
Unknown life.
• It emphasizes on the renewal of the criminal and the
. beginning of a new life for him. The most recent and the
most humane of all theories is based on the principle of
reforming the legal offenders through individual
treatment.
• Not looking to criminals as inhuman or criminal, this
theory puts forward the changing nature of the modern
society where it presently looks into the fact that all other
theories have failed to put forward any such stable theory,
which would prevent the occurrence of further crimes
• Reformative theory believes that many of the criminals
can be reformed and leading a law-abiding life all-
together. Reformative techniques are much close to the
deterrent techniques.
 • This theory aims at rehabilitating the offender to
. the norms of the society i.e. into law-abiding
member.
• This theory condemns all kinds of corporal
punishments. These aim at transforming the
law-offenders in such a way that the inmates of
the peno-correctional institutions can lead a life
like a normal citizen.
• These prisons or correctional homes as they are
termed humanly treat the inmates and release
them as soon as they feel that they are fit to mix
up with the other members of the community
Expiation or Atonement
• The offender atones for his crime with
suffering. One being punished he is as good as
if he has not committed a crime.
• It is punishment in the form of group
vengeance where the purpose is to appease
the offended public or group.
• Difficulty lies in determining the quantum of
punishment which is capable of washing away
the guilt and also there is no stopping the
offender from committing an offence again.
Expiatory Theory
• The expiatory theory was based on moral principles, had little to
do with law or legal concepts.

• This theory is more related to ancient religious perceptions

regarding crime and punishment when prisoners were placed in
isolated cells to repent or expiate for their crime or guilt from the
core of their heart and resolve to shun crime.

• It was believed that anyone who sincerely repents for his

misdeeds or crimes, deserves to be forgiven and let off. The
ancient Hindu law commentator Manu was a great admirer of
expiation as a form of punishment for the rehabilitation of the
criminal in society. 
• The expiatory theory, being based on ethical considerations,
has lost its relevance in the modern system of punishment.
.
• In the present age of materialism and declining moral values,
expiration can hardly be effective in bringing about a change
in the criminal mentality of offenders and therefore,
expiatory theory as a punishment is not suited in the present
context of rationalized penal policies

• but now it has come with broader aspect with the different
retributive concept in tortious liability and in some penal
provision of Indian Criminal justice as in
compoundable offense reference section 320 of criminal
procedure code.
• MODERN PERIOD
• According to the Modern Expiation Theory, compensation is
. awarded to the victim from the wrongdoer. By crimes awarding
compensation from the pocket of the wrong-doer, he is punished
and is prevented from doing such offenses in his remaining life.
• This also becomes a lesson to the remaining public. Generally,
in other systems of punishment, the victim is not taken into
consideration. The present criminal justice system concentrates
only on punishing the criminal. The Courts are not in a position
to point out the grievance of the victim or his family members.
• They only have the aim to prevent the crimes. They only know
to’ punish criminals. Recently by the efforts of the sociologist’s
criminologists, penologists, etc., the criminals are also not
punished severely, and there are certain rehabilitative and
reformative steps taken to reform the criminals.
• It is a good and welcome measure. Then what
about the real victims, who suffered in the hands of
. such criminals?
• In majority cases, the real victim also becomes a
criminal and wants to take revenge against the
wrong-doer or his family.

• Psychologically, economically, socially, etc., the

victim is not satisfied by mere punishment on the
criminal. The jurisprudents, jurists, criminologists,
penologists, sociologists, etc., too are not
concentrating.
• CONCEPT OF VICTIMOLOGY AND EXPIATORY
THEORY
.• Recently separate researchers, scientists under the name of
“Victimologists” are propounding to give certain remedies to the
aggrieved victims and their families.
• This separate science is called “Victimology”. This theory supports the
Expiation Theory.
• According to the Victimologists, the chain reactions of personal revenge
can be decreased in society by awarding compensation to the victims from
the property of the criminals.
• It can prevent criminal behavior in society. Because it stops the chain
reaction. It subsides the personal revenge. Economically too, the victim or
his family members satisfy with the money and can lead their remaining
life safely.
• It also creates repentance in the minds of the criminals. Thus considerable
sects of modern criminologists, jurists, penologists, jurisprudents,
sociologists, etc. support the idea of victimology and expiation theory.
 • STATE VS. SAYYADUDDIN 1996 AP
• Justice Motilal Naik of A.P. High Court gave a sensational
. judgment on 25-11-1996 covering this expiation theory.

• The case particulars are: Sayyaduddin and his brother raided

Maslehuddin due to personal grudges. As a result, Maslehuddin
was killed. The High Court imposed three years imprisonment to
the accused and awarded Rs. 60,000/- as compensation payable by
the accused to the family members of Maslehuddin. Delivering the
judgment, Justice Motilal Naik observed:
• “By imposing imprisonment on the accused could not be helpful to
the family members of the victim. In my opinion, it is better to help
the victim’s family members, as there is no one to look after them
after the death of the bread-earner. Therefore, it is justified to
impose a penalty/fine of Rs. 60,000/- on the accused besides
sending him to prison for three years.”
 • CRITICISM:
• The penologists criticize the expiation theory opening that this theory is
. sufficient to meet the less serious type of offenses, such as abuse,
assault, defamation, trespass, torts, etc.
•
• However, the expiation theory could not be a solution in cases of
murder, plunders, rapes, kidnapping, thefts, etc., serious natured
offenses. If the compensation is allowed to be paid in rapes, the number
of rapists will be increased.

• The rich people will be habituated to rape poor women and pay
compensation. By their money, they become recidivists. They can
escape imprisonment by paying money.
• Therefore, it could not prevent serious offenses. One more difficulty in
the Expiation theory is what measures the compensation can be fixed in
cases of rape, kidnapping, murder, etc.?
•
• Sometimes, the criminals may not have sufficient money
to pay compensation. How much compensation can be
. awarded to a woman raped? How society will react against
her and rapist? If the woman raped is awarded money,
does she not become habituated in filing false complaints?
• So by expiation theory, the crimes cannot be prevented,
even though a certain amount of compensation is awarded
to the victims. Therefore, it is not a correct remedy to
prevent the crimes in the society.
• However, in the Criminal Procedure Code, 1973 this
theory is already being implemented. This Code classifies
the offences in two categories – one serious natured crimes
and another simple crime. Section 320 of Cr.P.C. describes
certain crimes, which can be compoundable.
 Ancient Forms of Punishment
1. Death Penalty – affected by burning, beheading,
hanging, and pillory and other forms of medieval
executions.
2. Physical Torture – Barbaric forms of inflicting pain.
ex. Mutilation, Whipping.
3. Social Degradation – Putting the offender into shame
or humiliation.
4. Banishment or Exile – The sending or putting away of
an offender which was carried out either by prohibition
against coming into a specified territory such as an
Island to where the offender has been removed.
5. Other similar forms of punishment like transportation
and slavery.
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• Types of Corporal punishment - Bing video
Methods of Punishment
• Public Humiliation - Shame punishment
• Exile/banishment
• Payment to the victim
• Branding - (Stigmatizing) - is the process by which
a mark is burned into the skin of a living person.
• Flogging - (flagellation) - is the act of methodically
beating or whipping the human body.
• Mutilation - (maiming) - is the act of physical injury
that degrades the appearance or function of any
living body usually without causing death.
• Burning
• Beheading
 Contemporary forms of Punishment
1. Imprisonment – putting the offender in
prison for the purpose of protecting the
public against criminal activities and at the
same time rehabilitating the prisoners by
requiring them to undergo institutional
treatment programs.
2. Probation – a disposition whereby a
defendant after conviction of an offense, the
penalty of which does not exceed seven years
imprisonment, is released subject to the
conditions imposed by the releasing court and
under the supervision of a probation officer.
3. Fine – an amount given as a compensation
for a criminal act.
4. Destierro – the penalty of banishing a
person from the place where he committed a
crime, prohibiting him to get near or enter the
25-kilometer perimeter
• 6. Death Penalty -