Nature of Punishment / Introduction to Penology

UNIT- I

Dr. M. Priyamvadha
Professor
Department of Criminology &
University of Madras
Chennai
India
What is Penology?
 Penology (from the Latin Poena, “punishment”) comprises penitentiary science that
concerned with the process devised and adopted for the punishment, repression and
prevention of crime and the treatment of prisoners.
 The study of “penology is the science of prison administration and rehabilitation of
criminal”.
 Penology is the study of punishment in relation with crime. It is science which deals with
the principles and methods of punishments. So it is about theories and methods of
punishment for criminal acts.
 Penology concerns many topics and theories, including those concerning prisons (Prison
reform, prison abuse, prisoner’s rights and recidivism), as well as theories of the purposes
of punishment (such as deterrence, rehabilitation, retribution and utilitarianism.
 Penology is a multidisciplinary subject that aims to study and evaluate the application of
penal sanctions to wrongdoers.
 It has broadly focused on the justifications, characteristics and effectiveness of penal
institutions.
 Since the eighteenth century, many penologists have conceived of prison as a place with
rehabilitative potential, emphasizing its role as a means of reducing reoffending or of
instilling moral backbone into off enders.
Introduction to Penology
 The discipline of penology has been primarily concerned with punishments sanctioned and
undertaken by the state, it is important to recognize that punishment does not begin there,
but rather within wider society.
 Punishments can be physical or psychological, performed publicly or privately, and can be
either informal or a formal and legal sanction.
 You may have experienced some form of sanction or punishment by a family member while
as a child at home, or at school through informal interactions with friends or for breaking
school rules.
 As an adult, such informal punishments may take place in relationships or in the work-
place. You may feel that this form of punishment has served you well in your life, or you
may have found it no use at all.
 From this experience, you may think that punishment is a ‘necessary evil’—that is essential
for the raising of children or for the regulation of adult human life—or it may have led you
to think that such sanctioning is counterproductive.
 Punishments are invoked when someone is believed to have done something wrong. This
means that they are believed to have breached the rules, whether those rules are legal, social,
organisational or moral.
Introduction to Penology (Cont..)
 Wrongdoing and rule breaking are probably inevitable in human societies, and so the
pertinent question becomes ‘how should we respond when wrongful acts and breaches of
rules occur?’
 Should we aim to include or exclude offenders, to help them, to control them, or to harm
them? Alongside this, we must also recognize that the manner in which rules are defined
and understood may vary over time and space.
 Some wrongdoing is illegal and defined as a ‘crime’, while other forms of harm are not.
Further, whether a person is punished for a wrongdoing is not only a consequence of the
act itself. It is just as important to think about who the offender is.
 The nature and extent of action that the government and its official servants take in
response to human wrongdoing tells us a great deal about the kind of society in which we
live.
 Many penologists and politicians have highlighted over the centuries that the way in which
we deal with offenders is a major indication of the level of civilization and commitment to
human rights and civil liberties in our society.
 The study of punishment and penalties, then, is not only about those who are subjected to
them, or even those who work in the criminal justice system, but is something that goes to
the heart of our culture.
Introduction to Penology (Cont..)
 The study of punishment has a very long history.
 There are documents detailing penal philosophy in the times of the great Greek
civilization, and both Plato and Aristotle wrote on punishment.
 There is also evidence of penal theory in the Egyptian and Roman civilizations.
 You have probably heard the saying ‘an eye for an eye, a tooth for a tooth’. This phrase is
derived from the ancient Jewish tradition of lextalionis. Although it is still widely used
today, its real meaning of restoring balance is often misinterpreted.
 The great social thinkers, sociologists and philosophers—from Kant and Hegel, to
Durkheim and Foucault—have all written about punishment, with the latter writing also
on imprisonment.
 But the discipline of penology is often seen as emerging in the eighteenth century, with
the philosophical insights of Cesare Beccaria and Jeremy Bentham, alongside the penal
reforms inspired by evangelical Christians such as John Howard and George
Onesiphourus Paul.
 You should be aware that this multidisciplinary approach and pragmatic application of
knowledge continues to shape the discipline of penology today.
Role of Penologists
 Penologists are interested in the responses to human wrongdoing
and, specifically , in the practices, forms and evolution of the
punishment and social controls that exist in contemporary
society
 Penologists focus on the criminal justice system and develop
arguments concerning its legitimacy .
 Although united in their focus of investigation, penologists come
from a wide range of disciplines, including psychology ,
geography , history, philosophy , social policy , sociology and
criminology .
 In general, penologists look to understand the deployment of
penalties within their social, historical, economic and political
contexts.
Role of Penologists
 Penologists ask broader questions concerning who we
punish, for what offence, when and why .
 Penologists are interested in the justifications of
penalties and social sanctions, and develop a specific
theoretical framework that informs, and shapes, their
research and arguments.
Four components of Penology
 What is punishment?
 Why do we punish people?
 How do we punish people? and
 What can be done to improve punishments?
What is Punishment?
H.L.A. Hart – Punishment should inflict some amount of pain and unpleasant consequences to the
offender, it should relate to the offence that the offender has committed, it should be response to
breaking the social norms and it should be administered by an authority under the legal framework.
 Punishment is the practice of imposing something unpleasant or aversive on a person or animal,
usually in response to disobedience, defiance, or behaviour deemed morally wrong by individual,
governmental or religious principles.
So the immediate consequence that follows a criminal act is known as punishment.
 Punishment involves all or few or any one of the following :
1. Suffering
2. Loss
3. Pain
4. Penalty
5. Image tarnish
Punishment :- Definition

 Oxford Dictionary defines punishment as means to make an

offender suffer an offence.
 Punishment is the conscious infliction upon a disturbing individual
of undesired experience solely in the interest of his welfare.
 Durkheim stated that ―punishment is nothing but meaningful
demonstration i.e. punishment has no conscious intention at its core,
but is born out of an emotional and psychological reaction to an
offence caused.
The Code of Hammurabi
 The Code of Hammurabi in the year of 1780 BC is said to express the concept of
punishment in the form of lextalionis (the law of equal retaliation).
 The same is clarified in Mosaic Code as ―an eye for an eye, a tooth for a
tooth….a life for a life.
 Kant was also of the view that human beings are free and while doing any act
they must recognize their deeds and accept their deserts.
 In 18th Century period of enlightenment, the Italian Professor, Cesare Bonesana
Marchese di Beccaria (1738-1794) in his book Dei Delitti e dellaPene (On Crime
and Punishment) opined that the punishment should be proportionate to the harm
done to society, should be identical for identical crimes, and should be applied
without any reference to social status of the either the offender or the victim.
Classical School
 The classical school of thought was premised on the idea that people have free will in
making decisions, and that punishment can be a deterrent for crime, so long as the
punishment is proportional, fits the crime, and is carried out promptly.
 The classical view in criminology explains crime as a free-will decision to make a criminal
choice. This choice is made by applying the pain-pleasure principle: people act in ways
that maximize pleasure and minimize pain.
 Since people had free will and were responsible for all actions taken, they played an active
role in the crime committed and should be held accountable. Classical crime theory asserts
that people act rationally and are aware of the consequences, so they should be punished
accordingly.
 Rationality, or the idea that people choose to commit crimes. Hedonism, or the assumption
that people seek pleasure and try to avoid pain. Punishment acting as a deterrent to crime.
 The father of classical criminology is generally considered to be Cesare Bonesana,
Marchese di Beccaria. Dei Delitti e della Pene (On Crimes and Punishment) (1764): This
book is an impassioned plea to humanize and rationalize the law and to make punishment
more just and reasonable.
Neo-Classical School

 Jeremy Bentham of Neo-Classical School said that punishment should be

primarily justified because of its deterrent effects.
 The 19th century heralded the era of positivism which was influenced by the
science.
 It discarded both the ideas of classical and neo classical school. It negated the
proportionality principle for awarding the punishment and the deterrence effect of
punishment.
 It shifted the focus of punishment from crime to criminal. The offender is in the
center seat here.
What Works and Nothing Works Movement
 The reform in correctional services is closely linked to what is now a widely
known article What Works? by Robert Martinson (1974) published in The Public
Interest.
 After reviewing existing prison reforms initiatives, he reported that ―with few
and isolated exceptions, the rehabilitative efforts that have been reported so far
have had no appreciable effect on recidivism.
 This led to the movement of “Nothing Works”. And now the question before the
scholars is what should be done? It further, led to the movement of “get tough”
with the deterrent approach in their mind which resulted into the worldwide
increase in prison population. It changed the whole philosophy of correction.
 Now the researchers, law and policy makers delved the issue with a new approach
to develop those rehabilitation techniques which would really help the offender in
his rehabilitation and reintegration in the society.
Punishments – An evolutionary approach a quick glance

 Progress of civilization results in change in the method of punishment.

 In primitive societies punishments were left with the individuals or families
(vindictive or retributive)
 Proportionate punishment.
 Punishment under the state or community (Second stage)
 With the development of law with the machinery of justice for the maintenance of
public order. (Third stage)
 Henceforth crimes are against state and illegal.
 Gradual development of humanist movement – Beccaria and Jeremy Bentham.
 Development of theories
 Emphasis on the dignity of the individual, less severity, improvement of the prison
system.
 Scientific psychological studies on crime and punishment.
Historical Perspective Of The Punishment System in India

 “Punishment governs all mankind; punishment alone preserves

them; punishment wakes while their guards are asleep; the wise
considers punishment as the perfection of justice”
- Proverb by Manu
Historical Perspective Of The Punishment
System
 From the earliest times, punishment of offenders was a private matter.
 Punishment was basically based upon the principle of Lex Talionis.
 It is a principle that states that the victim or a member of the victim’s family
retaliates against the offending party as a remedy for personal wrongs, i.e. an eye
for an eye.
 In many instances, personal revenge was not only a right but also a responsibility.
 Every tribe, family and kin in every kind of society were obligated to avenge the
harm caused to them and their family.
 The Sumerian code and the code of Hammurabi are the earliest written criminal
codes.
 These codes carry the harsh translation of ‘lex talionis’ but further specify the
concept of ‘equality on revenge’, meaning that the severity of retaliation must be
equal to the severity of offence or amount of retaliation must fit the crime.
Mythological Perspective Of Punishment
 It is believed in many religions that an individual’s ultimate punishment is being sent to hell
by God who is the highest authority that upholds justice.
 Hell is considered to be a place which exists after the life of a person, corresponding to the
sins committed during his/her life.
 In Plato’s ‘Myth of Er’ and Dante’s ‘Divine Comedy’ it is said that in hell, damned souls
suffer for each of the sins that they committed.
 In many religious cultures including Christianity and Islam, hell is traditionally depicted as a
fiery and painful place where souls are punished.
 In hinduism, Garuda Purana is considered to be a set of instructions given by lord Vishnu to
his carrier, Garuda (king of birds).
 This version of Garuda Purana that survives into the modern era was written somewhere
between 800 to 1000 CE.
 It deals with law, astronomy, medicine, grammar, gemstones, etc. It is a medium sized
Purana composed in Sanskrit containing 19000 shlokas.
 It is also known as Vaishnava Purana. In this Purana, different offences were defined and
their respective punishments prescribed. The punishments were very brutal, barbaric and not
fit for a civilized society. Some of them are mentioned below:
Garuda Purana
Garuda Purana Wrongdoing
Kumbhipakam Destroying innocent lives for
food.
Thamisra Stealing others property
including wife, children and
belongings.
Agnikunda Snatching other’s property by
force, gaining undue
advantage and unlawfully
making the best out of
everything in the world.
Punishment Given
Roasted in hot oil tanks by
Yama-kinkaras.
Thrashing by a mace.
Roasting in agnikunda in an
inverted position with hands
and legs tied from behind on
a stick.

Krimibhojanam Using people for selfish Insects are left intruding the
means, benefiting from body which they take as their
other’s work. food
Sanmali Unchaste relationship by
Kamukas. Thrashing by a mace.
Indian Jurisprudence Under Hindu Kings
 Under Ancient Hindu kings, there was an administration of civil and criminal
justice which was done according to the rules of the Dharma Shastras.
 In ancient Hindu law, laws were discussed under 18 heads covering both modern
civil and criminal branches of law which fell under heads such as gifts, sales,
partition, bailment, non payment of debt, breaches of contract, disputes between
partners, assault, defamation, trespass of cattle, damage to goods and bodily
injury in general.
 It provided that the penalty for theft be divided into open theft and concealed theft
and different punishments were prescribed for them according to Roman Law.
 The former was punished by fine and the latter by the cruellest form of
punishment of cutting off the hand or foot, at the discretion of the judge.
 Death punishment was also given for crimes like housebreaking and highways
robbery.
Unequal And Discriminatory Punishment System In
Ancient India

 During the ancient Indian period there was a clear distinction made
between the people of higher and lower castes while imposing
punishments.
 Kautilya’s Arthashastra prescribed lower punishment to higher
caste offenders and more severe punishment to lower caste
offenders.
 According to him, a brahmin is not to be tortured like other people
even though he may have committed an offence; they were also
exempted from death penalty.
 For example: A Kshatriya who commits adultery with a woman
would be punished with the highest punishment, while a Vaishya
doing the same thing would be deprived of his entire property and a
Trial by ordeal during medieval period

 In the early period, a popular method employed in detecting crime

was dealt with the traditional system of trial by ordeal and how it
was replaced by other modern techniques like conducting enquiry,
examination of witnesses and evidences.
 The ordeals were not applied to all sections. They were held based
on their caste distinction. The Brahmins were tried by the ordeal by
balance whereas Kshatriyas by fire, the Vaishyas by water and the
Sudras by poison.
Types of Ordeal

 Water Ordeal
 Fire Ordeal
 Ghee Ordeal
 Ordeal of Poison
Water Ordeal
 Different methods of water ordeal were followed, for the trial of murder cases.
 Among them the most popular one was that, the accused was forced to collect three vessels
of water, used for washing the deity and directed him to drink it for fourteen days
continuously.
 If he was not affected by any sickness, he was considered innocent. But if he was affected
by any sickness or internal pain, he was proved guilty and proper punishment was given to
him.
 In the later half of the 17th century, a different form of water ordeal was followed. In this
ordeal, the accused was compelled to swim across the river infested with crocodiles for a
distance of about half-a-mile. If he returned safe, he was considered innocent. If the
crocodiles devoured him on his way, he was proved guilty.
 Another kind of water ordeal was that the images of God of Justice in silver, iron and clay
were put in water. Then the accused was directed to take one image from the water. If he
picked up the silver image he was adjudged innocent. On the other hand, if he picked up
iron or clay image, he was considered as guilty.
Fire Ordeal
 Barbosa, a Portuguese missionary in his account mentioned about fire
ordeal.
 As per that, a culprit was directed to place a red hot axe in his tongue for
criminal offence.
 On July 30, 1749, a Nair was suspected of stealing gold, based on the
false evidence of a village man.
 To find out the truth, both of them were directed to take the ring placed
in the boiling ghee. Their hands were sealed and opened after three days.
 As there was no mark like a burn, they were released from the charge.
This system was very popular and effective and it was also adopted
among the higher castes including the Brahmins.
Ghee Ordeal

 The ghee ordeal was followed mainly to prove adultery. It was

popularly known as satya pariksha in Malayalam and kaimukku in
Tamil. Kaimukku literally means dipping of the hand in boiled ghee.
 The adulteress was set apart from the family and the partner
involved in crime was given an opportunity to prove the innocence
by putting the finger in the boiling ghee.
 After dipping the fingers in the ghee, the hand was tied with a cloth.
On the third day, the cloth was removed from the hand and if the
hand had no wound or blister he was declared innocent. On the
other hand if the hand had blister, his guilt was confirmed.
 In 1844, Maharaja Swati Thirunal abolished this system on the
ground that it was outdated, unscientific and cruel.
Ordeal of Poison
 Giving poison to the culprit was another kind of ordeal.
 There were two kinds of poison ordeals.
 In one form, the Brahmins used to chant mantras and mixed three
barley corns of a poisonous root or white arsenic along with ghee.
The accused was compelled to eat it. If it did not affect him he was
proved innocent. Otherwise, he was declared guilty.
 The second form of such ordeal was that a cobra or any other
venomous snake was placed in an earthen pot and the accused was
asked to put his hand inside. If he was bitten, he was considered
guilty. Otherwise he was proved innocent.
Ordeal by balance

 The weighing apparatus for this purpose was decorated with garlands. On one
scale of the apparatus the clay from the temple tank was put and on the other
scale the accused was made to sit.
 As per this ordeal if the scale in which the accused sat, went up he was
considered innocent. On the other hand if the scale went down, he was adjudged
guilty. After the trial the accused was exile from his/her family.
 Justice was administered according to this Hindu law. The judgment based on this
was extravagant and cruel. Even then, this system was followed till the middle of
19th century.
 But, due to the spread of Western education and work of Christian Missionaries,
awareness was created among the people.
 As a result, the trial by ordeal system was replaced by examination of witnesses,
conduct of enquiry and evidences. With the adoption of the new system, the
traditional system of ordeal vanished.
Why Punishment?

 Past – To ensure crime is not repeated

 Present – To create fear
 Future – To prevent crime
Objective of Punishment
 Retribution
 Restoration
 Incapacitation / Societal Protection
 Deterrence
 Rehabilitation
 Reintegration
Retribution
 Retribution is the practice of “getting even” with a wrong doer.
 Retribution sets an important standard of punishment – transgressor
get what he deserves, but not more than that.
 Adam Smith (father of Capitalism) said that an important reason for
punishment is not only deterrence, but also satisfying the resentment
of the victim.
 According to him, a thief put to death is not retribution but a
murderer put to death is.
 In short, the very punishment is the mirror punishment (the more
literal applications of an eye for an eye.
Restoration
 For minor offences, punishment may take the form of the
offender “righting the wrong”.
 Eg. A vandal might be made to clean up the mess he/she
had made.
 In more serious cases, the punishment in the form of fines
ad compensation payments may also be considered a sort
of “restoration
Incapacitation / Societal Protection
 Incapacitation is a justification of punishment that refers to when
the offender’s ability to commit further offences are removed.
 Forward thinking justification of punishment – leads to future
reduction in re-offending is the justification.
 Offender can be physically or geographically removed.
 Physical removal - cutting off ‘hands of a thief, chemical castration
of sexual offender, sending him to jail etc. (Protecting the
community)
 Banishment to remote places.
Deterrence
 Deter means to stop. Stopping potential offenders from commiting
crime
 General deterrence – Aimed at all people
 Specific deterrence – Aimed at the offender
Reformation or Correctional Approach

 This concept aims at changing the behaviour of the offender, so that

he does not commit crime again.
 Shift in thinking process in the correctional administration
 Rights of the offender is taken into consideration.
Rehabilitation

 Teaching alternatives for livelihood (vocational training)

 Teaching the norms of the society.
 Treat the inmates and release them as soon as they feel that they are
fit to mingle with other members of the society.
Reintegration

 Offender re-entry into the society

 To prevent recidivism
 To incapacitate habitual offenders
 Attempts to change the mind-set of the society to accept
the offender back into the society after reformation and
rehabilitation.
Theories
 Deterrent Theory
 Retributive Theory
 Preventive Theory
 Reformative Theory
 Expiatory Theory
 Expiration/Compensation Theory
Deterrent Theory
 Severe punishment for even a small crime
 Stop criminal from future crimes and create fear among other
mischievous people in society
 To prevent /to abstain
Supporters – Plato, Locke, Fischte
Story of Queen Elizabeth – Pickpocketing – Death punishment
Critics – When a person is dying of hunger, he will not be bothered on
death punishment.
Oscar Wilde – Every saint has a past and every sinner has a future –
Valmiki/Angulimala
Retributive Theory
 An eye for an eye - Revenge
Aspects
1. Penalty – Grievance
2. Crime – Blameworthy/culpable
3. Similar offences – Similar punishment (Equality)
4. Responsible for crime – Responsible for punishment
Supporters : Emmanuel Kant, Plato, Hegel etc
Criticizers : Salmond – Retribution is not remedy but aggravates the offence
Case Law – In Jagmohan Singh Vs State of U.P. The court observed that Death penalty serves
two purposes –
1. It satisfies the stint of retribution
2. It works as a deterrent to like-minded criminals
Mahatma Gandhi – “An eye for an eye makes the whole world blind
Preventive Theory
 Prevent future crimes by removing the mischievous people from society – To
refrain
Absence of corpus of criminal
1. Jail
2. Transportation
3. Death punishment
Critic – Attempting only to prevent the crimes but not to change the thinking of
criminals
Case Law – D.K. Vashu vs West Bengal – Supreme court highlighted the purpose of
preventive detainment and observed that security of the State individuals can be
preventively detained.
Reformative Theory
 Punishment for correction
 Opportunity to realize and improve behaviour
 Educate / rehabilitate/discipline
 Human rights fights
Growth – Rehabilitation /Juvenile Acts/ Probation of offenders/Good behaviour
releases / Training on self employment.
Scope – Incurably corrupt persons/habitual offenders/terrorists/crime
syndicates/contract killers/hired criminals/hard-core criminals
Critics – Jail becomes casual place and caused increase in crime
Case Law – Sunil Batra Vs Delhi Administration : The court observed that fair
treatment will enhance their personality rather than to affect or egulate their life.
Mahatma Gandhi – Hate the sin no the sinner.
Other Theories
 Expiatory Theory
 Theorist of this theory say that the object of the punishment is self-realization
 If the offender after committing offence realizes and feels gult then he must be
forgiven.
 Manu Smrithi – Prayashita
Critics : This is moral only (obsolete)
Compensation Theory
Paying compensation to the loss made
Concept of blood money – According to the Islamic Sharia Law, if one casues the
death or injury of another person accidentally or intentionally, he or she has to pay
blood money or diya.
Kinds of Punishment

 Body and Life

 Confinement
 Monetary
Body and Life

 Corporal Punishment
 Capital and Death Punishment
Corporal Punishment

 Flogging
 Mutilation
 Branding
 Stoning
 Ducking Stool
 Stock & Pillory
 Crushing
Capital /Death Punishment

 Hang till death

 Lethal Injection
 Electrocution
 Lethal Gas
 Firing Squad
 Beheading
 Falling
Transportation
 Transportation to North America – Started during early 1600s and ended with American Revolution
of 1776
 British colonies in North America received transported British criminals.
 Transportation to Australia – In 1787, the “First Fleet”of convict ships departed from Englad to
establish the first British settlement in Australia, as a penal colony. The same was utilized for this
purpose between 1788 to 1794, and again from 1824 to 1847.
 Transportation from colonial India – First came into existence in 1857 after Indian Freedom Fight
(Sepoy Mutiny).
 Andaman Islands were used for transportation
 A cellular jail was constructed between 1896 and 1906 as a high-security prison with 698 individual
cells for solitary confinement
 This is famously known as “Kaala Paani”(Black Water)
 Surviving prisoners were repatriated in 1937
 The penal settlement was abolished in 1945
 An estimated 80,000 political prisoners were transported to this ‘torture machine’, in an
experiment’that involved tortue, medical tests, forced labour and for many, death
Imprisonment
 Simple Imprisonment
An offender is punishable with simple imprisonment for committing an offence
under any of the sections 168, 169, 172… of the Indian Penal Code, 1860
 Rigorous Imprisonment
An offender is punishable with rigorous imprisonment for committed an offence
under any of the sections like 304, 394 etc of the Indian Penal Code, 1890.
 Solitary Confinement – ( A single offender in jail without companions)
Whenever any persons is convicted of an offence for which under this code the court
has power to sentence him to rigorous imprisonment, the Court may, by its sentence,
order that the offender shall be kept in solitary confinement for any portion or
portions of the imprisonment to which he is sentenced, not exceeding three months in
the whole.
Monetary - Forfeiture
Deodand
This is the process of forfeiture of an instrument or object for causing
the death of a person
Was practiced in Britain since 11th Century
It can be a cart, ship, boat, tree or anything
Forfeiture of property – Below IPC Sections are examples :
Sec. 126 – Committing depredation on territories of Power at peace
with the Government of India
Section. 127 - Receiving property taken by war or depredation
mentioned in section 125 and 126
Sec. 169 – Public servant unlawfully buying or bidding for property
Thank you